Maytal Gilboa is an Assistant Professor at the Faculty of Law at Bar-Ilhan University, Yotam Kaplan is an Assistant Professor at the Faculty of Law at Bar-Ilhan University, and Roee Sarel is Junior Professor of Private Law and Law & Economics at the University of Hamburg. This post is based on their recent paper, forthcoming in the Georgetown Law Journal.
The climate crisis represents a stark clash between short-term and long-term interests. Governments prioritize short-term economic growth over long-term climate stability, and are hesitant to comply with their international obligations, which involve costly short-term concessions. Powerful industry lobbyists push for policies that guarantees immense short-term profits, at the expense of future generations. Regulatory mechanisms and international law treaties seem unable to provide effective legal responses to the crisis.
Climate litigation, operating through the court system, aims to fill the gaps left by national and international regulation. Unfortunately, litigation has so far also proven largely ineffective. Currently, climate litigation is primarily based on tort principles, which necessitate a clear showing of harm, attributed to a specific injurer under a “but-for” test for causation. This formulation puts plaintiffs at a structural disadvantage when it comes to climate litigation. The harms of climate change entail unique features: most of them will only materialize in the medium-to-far future, they are highly dispersed, non-monetary by nature, and difficult to attribute to specific actors. Identifying, quantifying, and proving such harms in courts is near-impossible, and claims are systematically rejected by courts. Additionally, tort liability is typically available only following some “wrong” by the defendant. In the context of the climate crisis, polluters who contribute significantly to global warming may not necessarily be committing a wrong, i.e., breaching any identifiable legal duty. Even those who strictly adhere to all legal requirements and regulatory standards, and therefore commit no apparent “wrong,” still contribute to global warming. Thus, the focus of tort law on wrongdoing fails to fully capture the nature of the problem.
