Legal Remedies for Climate Change Damage 1
2024 03 21
The idea of bringing suit for damages against fossil fuel companies for weather hazards [https://billmckibben.substack.com/p/you-flood-it-you-pay-for-it?utm_source=post-email-title&publication_id=438146&post_id=142598011&utm_campaign=email-post-title&isFreemail=true&r=8ylpe&triedRedirect=true&utm_medium=email] seems mistaken on more than one ground.[1]
First is the empirical one of how much of the damage of a specific weather event is caused by CO2 emissions into the atmosphere. More than zero and less than 100%, but how much?
Second, the wrong people are in the dock. The people who emitted the harmful CO2 are not the fossil fuel companies. Rather, the people who caused whatever harm there is, are the people who caused carbon atoms to be combined with oxygen atoms and released the resulting CO2 into the atmosphere. They did this for their benefit without taking into account the harm this would produce by contributing to extreme weather evens, among other harms. What court has jurisdiction to bring these people to judgement? The emitters are located all over the world and have been emitting CO2 for a long time.
Third, even if by some strange legal theory one can hold liable the persons who sold the substances containing carbon atoms to those who caused them to be oxidized [Is the store that sold an arsonist the matches liable for the fire damage?], those liable sellers are still a very great number going back a long time. Again, the problem of jurisdiction and practical problem of getting the right defendants into court seem insurmountable.
Finaly, supposing suit can be brought against some arbitrary group of sellers of substances containing carbon atoms to those who cause them to be oxidized, there is the problem of determining how much that specific group of sellers contributed to total sales of substances containing carbon atoms to those who caused them to be oxidized, which oxidization and release of CO2 is less than the total damage from the extreme weather event.
It is hard to take this kind of suit seriously as a means of recovering damages or even of deterring future sales of substances containing carbon atoms to those who cause them to be oxidized. Indeed, it does not, in fact, seem to be the objective of these suits. Bill McKibben says, “So you need a mechanism for places where there is no oil in the ground to inflict some hurt on Big Oil — and get some justice at the same time.”
I disagree that “inflicting hurt” will avoid any additional release of CO2 into the atmosphere and so will reduce any future harm. I further disagree that said “inflicting hurt” – transferring income from owners of oil firms to the taxpayer in “places where there is no oil in the ground” -- is to do justice.
But more importantly, I think this approach to make policy for reducing the harm of climate change into a “good (activists) guys”/ “bad (fossil fuel producers) guys” morality play actually does harm. It channels what ought to be efforts to persuade politicians to impose and ultimately the public to accept the modest costs of low-cost measures to give incentives to potential emitters to alter their behavior, into a series of symbolic battles to oppose specific fossil fuel producing or transporting projects.
But it goes beyond the opportunity cost of ineffective advocacy. Anyone on the sidelines looking at the stakes in these battles – the large costs imposed on the project developers in relation to the usually minuscule reductions in CO2 that can result[2] could only conclude that the activists engaging in those battles believe that indeed the cost of reducing CO2 emissions IS large, larger, some observers would conclude, than they are willing to accept to reduce harm, most of which is in their not immediate future.
[Standard bleg: Although my style is know-it-all-ism, I do sometime entertain the thought that, here and there, I might be mistaken on some minor detail. I would welcome comments on these views.]
[1] All the same problems will arise with legislation requiring fossil fuel producing firms to pay into a “superfund.”
[2] See a specific discussion of this in [https://thomaslhutcheson.substack.com/p/why-not-lng-exports]
Even worse, the idea of allowing lawsuits for climate change harms strikes at foundational principles of the law.
What makes written law such an important innovation is that it lets people predict what will and won't result in later liability. If the law says you get to do X then people can't decide after the fact that they don't like the fact that you did X and impose liability for it.
Even with the tobacco lawsuits the idea was that the tobacco companies were liable under existing product liability rules for hiding how that product might harm their customers. We don't have a similar rule for general harms to the world for using a product and right now burning carbon is legal.
I see this as nothing but an attempt to do an end run around the democratic process. If we want a carbon tax we can pass one at any time but we've repeatedly decided not to do so.
And allowing liability for things we decide in the future are bad creates all sorts of problematic incentives.
What Bill does not take into account is the rising price of fossil fuels—either by an imposed pollution tax or reduced demand or scarcity in the face of continued operation of fixed-cost refinery and production facilities—will be passed on to consumers, and Big Oil will simply file bankruptcy and close up shop, leaving the rusting rotting hulks of derelict infrastructure for taxpayers to dismantle and clean up. Without appropriate modeling of society to inform responsible planning, the unpredicted consequential economic chaos and social mayhem will be as painful and catastrophic as dealing with a few feet of sea level rise—or worse.