Tort based climate change litigation : a comparative analysis from the perspectives of the legal systems of the United States, New Zealand and Germany

Abstract

Climate change is increasingly perceived as the greatest environmental challenge facing the world today. Experts agree that it affects not only ecological systems but also people and their property. Accordingly, some are and will be paying for the costs of climate change harms. Nevertheless, political discussions still focus on avoidance and mitigation strategies; the question of compensation for climate change harms has not been addressed yet. Litigation is therefore seen as one of the most feasible approaches for victims of climate change to receive compensation. The concept of tort based climate change litigation combines basic tort principles with recent science on climate change. This paper will explore the feasibility and desirability of such litigation from the legal perspectives of the United States, New Zealand and Germany. The thesis is that tort law in general and the particular tort systems under consideration are inappropriate means to address the global problems of climate change and associated harms. Cases of climate change harms would raise fundamental doctrinal and policy questions. The paper will show that climate change victims would be unable to overcome doctrinal hurdles such as establishing actionable harms and causation. Climate change litigation would further interfere with other policy measures. Litigation would be particularly incompatible with the current climate change governance system, which might be the best available forum to tackle the problems of climate change, including questions of compensation and liability.