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.
I do not go that far. The problem with using tort law for climate damages are the ones I laid out. (Maybe there are more.) IF we could get all the climate plaintiffs to sue all the climate defendants, the fact that defendants did not KNOW they were causing harm until much later would not be a problem. It would have been too much to ask for any defendant to forego THEIR use of carbon combustion. The problem is not knowledge but incentive to act on it.
At some point it is discovered that the effluent of a factory is causing harm. Who should bear the cost of the harm done before the discovery? That is not an efficiency problem. That the factory should going forward have to pay for the damage is causes (which may include side payments to protect themselves from the harm) IS an efficiency question; it achieves the lowest cost level of harm prevention.
NOT "allowing liability for things we decide in the future are bad creates all sorts of problematic incentives," also. That's the thing about the future. :)
To put the point more simply: ideally goods should be priced to internalize the net harms and benefits but this kind of legal rule essentially prices in all harms but no benefits. That's bad.
Yes, absolutely. Because we aren't forced to just sit there and accept very harmful goods. That's what regulation is for. If the net harms exceed the net benefits we ban/tax it. OTOH if you force every item sold to include the cost for all harms it inflicts but no discount for benefits you basically make really impactful products super expensive.
More generally, what you would see if you tried to apply a massive risk of unknown later general litigation it wouldn't cause companies generally to be more careful, it would simply cause them to split each product up into its own company since, if they aren't specifically aware of the harm at the moment, you won't be able to pierce the corporate veil in later litigation.
I think you are generalizing the idea that for most innovations (drugs are an exception) society is better off dispersing the risk of late discovered harm among the first users than holding developers to account.
As you will see in "Legal Remedies for Climate Change Damages 2" that is the position I take with CO2 emissions.
I'm not totally sure drugs are an exception but that's only 1/3rd of my concern.
In practice, I fear it basically amounts to a penalty for political unpopularity. As long as society sees the product in a good light it gets shielded from this kind of later liability. From a rule of law/just society perspective I think that's a bad way to run a country.
Another concern is simply the distorting impact of such a legal rule. Especially when the harm is very indirect and diffuse there is no real plausible way allowing such lawsuits incentivize better behavior.
Rather, for the most part what they would incentivize is simply splitting off independent corporations to deal with each product (at some non-insignificant efficiency cost) and since the owners weren't actually aware or even negligent you wouldn't be able to pierce the corporate veil. Plus you get a bunch of pure loss from all the legal costs and defensive choices.
Basically, there is always a substantial cost to these things and not much of a prima facia case for benefit.
That's only appropriate when the harm caused is of a kind the law has warned the actor they may be liable for causing.
I mean if you can sue for completely legal emissions why can't you sue the maker of Asprin for the fact that a number of people each year hurt themselves vis overdose?
More generally, the problem is that most products offer both societal benefits and harms. The sale of Asprin creates consumer surplus (many people would pay much more than the competitive price for the benefit) as well as consumer harm. We rely on the FDA to balance those interests just like we rely on the EPA to do it for pollution.
If you expand the relatively narrow notion of liability we have now (it's not just you caused harm but that you had a duty of care etc etc) to any an all harms retrospectively you destroy a huge amount of value since often the seller can't possibly hope to recoup much of the societal surplus (eg selling fossil fuels allows fast EMS response) but you now make them liable for any harms.
Besides, a country that operated in that fashion is giving up a huge amount of individual freedom. I can no longer choose to purchase risky products at my own risk no matter how clearly marked because the seller could be retrospectively made liable for any harms that result.
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.
I'll bite. Full disclosure - mild tree hugger, outdoor lover, pretty libertarian in the economic/civil sense with a lot of Canadian/Punjabi belief in helping out my community. I'll make the same argument I make for all large corporations. If the sole means of your profit is by fair play by all means you should keep it. There are so many assumptions made here that are not honestly discussed and deliberately made opaque. There are many ways to skin a cat.
Do pull yourself up from your bootstraps capitalists need 5 trillion dollars in subsidies? As those costs are passed on to children? Now that's fiduciary responsibility.
The profit component. At what point do we as a society say that's more than enough money for my family to inherit through the generations? Especially when off-shoring profits, avoiding taxes and calling yourself and Adam Smith capitalist.
Then there is the failing infrastructure and crushing energy innovation. The nuclear argument comes to mind.
I've been making the argument for over a decade that even if we have abundant energy, water will be a constraint.
There are is also the geopolitical freedom that energy abundance allows. Nations don't have to be in bed with anyone whose values don't align, nations are free to pursue other pursuits.
I'm being a little pedantic. Please don't get me started on the years of liable, where fossil fuel companies knew about the harm and didn't pay for it. It the basis of our legal system.
I full understand that fossil fuels will be slowly phased out. 8 billion people are going to suffer without a balanced plan of action. But we are about 10-20 years behind a trajectory because of sheer unadulterated greed and power. What a bad hollywood movie because of poor choices. A pivot is long overdue. You might argue that I brought the moral argument. I disagree. It's pretty evidence based.
Thanks for commenting. You have many points but it's not clear to me which one are in agreement (Pigou taxes for externalities/pricing of scarce resources like water?) and whihc i disagreement and why.
It is not relevant to this post, but I very much agree we should be heading for energy abundance. Fossil fuels will cease to be used when other form of energy are cheaper.
The argument is often made regarding causation, correlation - climate change to fossil fuels. The post was to state that this argument isn't even needed. There are many other legal theories that can be used to establish liability.
I'm neutral with much of what's in the article. A different tack would be for effective for litigation/policy change. But the discussion is much more nuanced than you illustrated. Encompassing many externalities.
OK. You are talking about McKibben. I did not mean my post to be a comment on his article; that was a hook. (I think that's legit, right?) So definitely I am not being nuance with his POV. For example, there are some externalities for which tort law is OK and legislation can be a good substitute for tort law. But climate change is not one.
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.
I do not go that far. The problem with using tort law for climate damages are the ones I laid out. (Maybe there are more.) IF we could get all the climate plaintiffs to sue all the climate defendants, the fact that defendants did not KNOW they were causing harm until much later would not be a problem. It would have been too much to ask for any defendant to forego THEIR use of carbon combustion. The problem is not knowledge but incentive to act on it.
At some point it is discovered that the effluent of a factory is causing harm. Who should bear the cost of the harm done before the discovery? That is not an efficiency problem. That the factory should going forward have to pay for the damage is causes (which may include side payments to protect themselves from the harm) IS an efficiency question; it achieves the lowest cost level of harm prevention.
NOT "allowing liability for things we decide in the future are bad creates all sorts of problematic incentives," also. That's the thing about the future. :)
To put the point more simply: ideally goods should be priced to internalize the net harms and benefits but this kind of legal rule essentially prices in all harms but no benefits. That's bad.
Is it worse than not including even the harms?
Yes, absolutely. Because we aren't forced to just sit there and accept very harmful goods. That's what regulation is for. If the net harms exceed the net benefits we ban/tax it. OTOH if you force every item sold to include the cost for all harms it inflicts but no discount for benefits you basically make really impactful products super expensive.
More generally, what you would see if you tried to apply a massive risk of unknown later general litigation it wouldn't cause companies generally to be more careful, it would simply cause them to split each product up into its own company since, if they aren't specifically aware of the harm at the moment, you won't be able to pierce the corporate veil in later litigation.
I think you are generalizing the idea that for most innovations (drugs are an exception) society is better off dispersing the risk of late discovered harm among the first users than holding developers to account.
As you will see in "Legal Remedies for Climate Change Damages 2" that is the position I take with CO2 emissions.
I'm not totally sure drugs are an exception but that's only 1/3rd of my concern.
In practice, I fear it basically amounts to a penalty for political unpopularity. As long as society sees the product in a good light it gets shielded from this kind of later liability. From a rule of law/just society perspective I think that's a bad way to run a country.
Another concern is simply the distorting impact of such a legal rule. Especially when the harm is very indirect and diffuse there is no real plausible way allowing such lawsuits incentivize better behavior.
Rather, for the most part what they would incentivize is simply splitting off independent corporations to deal with each product (at some non-insignificant efficiency cost) and since the owners weren't actually aware or even negligent you wouldn't be able to pierce the corporate veil. Plus you get a bunch of pure loss from all the legal costs and defensive choices.
Basically, there is always a substantial cost to these things and not much of a prima facia case for benefit.
That's only appropriate when the harm caused is of a kind the law has warned the actor they may be liable for causing.
I mean if you can sue for completely legal emissions why can't you sue the maker of Asprin for the fact that a number of people each year hurt themselves vis overdose?
More generally, the problem is that most products offer both societal benefits and harms. The sale of Asprin creates consumer surplus (many people would pay much more than the competitive price for the benefit) as well as consumer harm. We rely on the FDA to balance those interests just like we rely on the EPA to do it for pollution.
If you expand the relatively narrow notion of liability we have now (it's not just you caused harm but that you had a duty of care etc etc) to any an all harms retrospectively you destroy a huge amount of value since often the seller can't possibly hope to recoup much of the societal surplus (eg selling fossil fuels allows fast EMS response) but you now make them liable for any harms.
Besides, a country that operated in that fashion is giving up a huge amount of individual freedom. I can no longer choose to purchase risky products at my own risk no matter how clearly marked because the seller could be retrospectively made liable for any harms that result.
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.
I'll bite. Full disclosure - mild tree hugger, outdoor lover, pretty libertarian in the economic/civil sense with a lot of Canadian/Punjabi belief in helping out my community. I'll make the same argument I make for all large corporations. If the sole means of your profit is by fair play by all means you should keep it. There are so many assumptions made here that are not honestly discussed and deliberately made opaque. There are many ways to skin a cat.
https://www.visualcapitalist.com/charted-5-trillion-in-fossil-fuel-subsidies/
Do pull yourself up from your bootstraps capitalists need 5 trillion dollars in subsidies? As those costs are passed on to children? Now that's fiduciary responsibility.
https://www.statista.com/chart/27887/big-oil-sees-profits-increase/
https://www.reuters.com/article/idUSKBN28J1IH/
The profit component. At what point do we as a society say that's more than enough money for my family to inherit through the generations? Especially when off-shoring profits, avoiding taxes and calling yourself and Adam Smith capitalist.
Then there is the failing infrastructure and crushing energy innovation. The nuclear argument comes to mind.
https://www.energy.gov/ne/articles/nuclear-power-most-reliable-energy-source-and-its-not-even-close
Aside from climate change - litigation in direct pollution is completely provable.
https://www.eesi.org/papers/view/fact-sheet-climate-environmental-and-health-impacts-of-fossil-fuels-2021
https://thehill.com/changing-america/sustainability/energy/3847883-in-drought-stricken-states-fossil-fuel-production-jeopardizes-limited-water-supplies/
https://www.ucsusa.org/resources/coal-and-water-pollution
https://theconversation.com/carbon-catch-22-the-pollution-in-our-soil-78718
https://www.ucsusa.org/resources/whats-wrong-fossil-fuel-based-fertilizer
I've been making the argument for over a decade that even if we have abundant energy, water will be a constraint.
There are is also the geopolitical freedom that energy abundance allows. Nations don't have to be in bed with anyone whose values don't align, nations are free to pursue other pursuits.
I'm being a little pedantic. Please don't get me started on the years of liable, where fossil fuel companies knew about the harm and didn't pay for it. It the basis of our legal system.
I full understand that fossil fuels will be slowly phased out. 8 billion people are going to suffer without a balanced plan of action. But we are about 10-20 years behind a trajectory because of sheer unadulterated greed and power. What a bad hollywood movie because of poor choices. A pivot is long overdue. You might argue that I brought the moral argument. I disagree. It's pretty evidence based.
Thanks for commenting. You have many points but it's not clear to me which one are in agreement (Pigou taxes for externalities/pricing of scarce resources like water?) and whihc i disagreement and why.
It is not relevant to this post, but I very much agree we should be heading for energy abundance. Fossil fuels will cease to be used when other form of energy are cheaper.
The argument is often made regarding causation, correlation - climate change to fossil fuels. The post was to state that this argument isn't even needed. There are many other legal theories that can be used to establish liability.
Forgive me for being obtuse, but I still do not know what you are agreeing or disagreeing with me (or with McKibben?) about. :(
I'm neutral with much of what's in the article. A different tack would be for effective for litigation/policy change. But the discussion is much more nuanced than you illustrated. Encompassing many externalities.
OK. You are talking about McKibben. I did not mean my post to be a comment on his article; that was a hook. (I think that's legit, right?) So definitely I am not being nuance with his POV. For example, there are some externalities for which tort law is OK and legislation can be a good substitute for tort law. But climate change is not one.