Filling the evidentiary gap in climate litigation

Abstract

Lawsuits concerning the impacts of climate change make causal claims about the effect of defendants' greenhouse gas (GHG) emissions on plaintiffs and have proliferated around the world. Plaintiffs have sought, inter alia, compensation for climate-related losses and to compel governments to reduce their GHG emissions.To date, most of these claims have been unsuccessful. Here, we assess the scientific and legal bases for establishing causation and evaluate judicial treatment of scientific evidence in 73 lawsuits. We find that the evidence submitted and referenced in these cases lags considerably behind the state-of-the-art in climate science, impeding causation claims. We conclude that greater appreciation and exploitation of existing methodologies in attribution science could address obstacles to causation and improve the prospects of litigation as a route to compensation for losses, regulatory action, and emission reductions by defendants seeking to limit legal liability. Main textPlaintiffs have brought over 1,500 climate-related lawsuits worldwide, and the number of claims filed continues to increase 1 . Without effective non-judicial mechanisms providing compensation for climate-related loss and damage, plaintiffs have filed lawsuits seeking financial remedies from high-emitting corporations for losses suffered due to climate change 2 . Robust scientific evidence is critical to the success of such claims 3-5 . For example, claims for compensatory damages must demonstrate a causal link between the defendant's behaviour and the plaintiff's injury. Recognising this, recent literature has drawn on analogous categories of case, such as toxic torts, in which modified causation tests reconcile legal causal analysis with scientific evidence that demonstrates multiple entities' contribution to the risk of harm 5 . However, despite developments in scientific 6 and legal theory 5 on causation and attribution of climate change damages, compensatory-damages claims have been unsuccessful. Other lawsuits challenge inadequate state and corporate climate change mitigation targets and policies 7 . To establish admissibility, these claims may also rely on courts finding that emissions resulting from defendants' policies led to impacts affecting the plaintiffs.A claim must first meet procedural requirements that render it admissible, including 'standing', which establishes that plaintiffs have legally protected interests that entitle them to bring the claim. Demonstrating a connection between defendants' actions and plaintiffs' injuries may contribute to meeting the standing requirement. To date, admissibility has been the primary outcome-determinative obstacle for climate

Severe Lake Heatwaves Attributable to Human‐Induced Global Warming

“…An important open question regarding lake heatwaves is if anthropogenic climate change influences their occurrence or do they simply occur due to natural climate variability. An understanding of whether, and by how much, human‐induced global warming contributes to the occurrence of lake heatwaves is of substantial public and scientific interest, not only to further motivate efforts to limit global warming but also for liability considerations (Stuart‐Smith et al., 2021a, 2021b). Determining the link between anthropogenic climate change and the occurrence of lake heatwaves is indeed of critical importance.…”

Specifics of resolving disputes in the field of climate protection by state courts and arbitration

“…To achieve the strategic goal of limiting global warming to 1.5 °C, the Paris Agreement created obligations for states with additional obligations for various actors. We join the opinion of most authors that in the modern sense, climate disputes are any disputes arising in connection with the consequences of climate change and climate change policies provided for by the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement of 2015 (Stuart-Smith, 2021). However, the question of the first climate claims, and what specific disputes are included in this concept remains controversial to this day (Robinson & D'Arcy, 2021).…”

Causality and the fate of climate litigation: The role of the social superstructure narrative

“…Changing perception and the outcome of some litigation depends on understanding of what can and cannot be said with confidence by way of a causal chain from a scientific perspective. Stuart‐Smith, Otto et al (2021) highlighted that there appears to be a large discrepancy of this understanding between the scientific literature and legal practitioners. Given that courts mostly recognise general causation, that is, the link that exists between GHG emissions and climate change, the major hurdle remains to satisfy legal tests for specific causation.…”