Tort Law & Climate Litigation (Douglas Kysar, Yale Law School)

“All of us are at the same time both causes and victims of climate change.  So singling out any particular actor as the appropriate defendant assigned causal responsibility and ordered to remedy the harm starts to look quite difficult …  At the same time it’s hard to single out a plaintiff as the appropriate actor to bring the grievance to the court, because all of us will be victims of climate change in one way or another. … [But] you can cobble together 25 defendants and say they are 45% of post-industrial CO2 contributions. … It depends upon the judge buying that theory of attribution, that the corporation that sold the gas (rather than the consumer who bought the gas) should be tagged with those emissions. … The reason we can make those arguments is that these corporations lied about what they knew in terms of the harmfulness of their products.”

“On the remedy side, … even though [cities like Oakland and Boulder] are asking for money, it’s not monetary damages in the way we think of [typical] tort lawyers.  They’re asking for the creation of an equitable trust designed to help the municipalities and states to fund the adaptation needs that are inevitably facing them in the coming decades. … The argument is straightforward.  The investors and managers of these companies have known for decades that this was an existential threat. … The plaintiffs are asking to claw back the ill-gotten gains. That argument doesn’t seem that [as] novel and scary to a judge.”

“If you’re asking, on net, ‘have fossil fuels been good for America?’ … that is a question that feels undeniably political in nature. But plaintiffs’ lawyers are not asking judges [to do that]. They are asking ‘were the defendants’ actions imposing significant concentrated costs on the plaintiffs?'”

Douglas Kysar is Deputy Dean and Joseph M. Field ’55 Professor of Law at Yale Law School. His teaching and research areas include torts, animal law, environmental law, climate change, products liability, and risk regulation.

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