The Missing Relational Element in Tort Cases on Greenhouse Gas Emissions

Abstract

Abstract The applicability of tort law to conduct contributing to the causes of climate change (“emitting conduct”) has been questioned by courts in Common Law jurisdictions. The golden thread running through the decisions is that plaintiffs have failed to prove the existence of a standard by which to distinguish acceptable from unacceptable emission of greenhouse gases. In this article I argue that the problem of an inexistent standard of conduct is at the root of many other legal difficulties thrown up by attempts to portray emitting conduct as tortious conduct. The humble requirement of a standard of conduct captures the core mismatch: emitting conduct is normal conduct and in no accepted objective sense is it unreasonable.