Civil Liability and the Challenges of Climate Change: A Functional Analysis

Abstract

The most recent efforts under the UN Framework Convention on Climate Change (UNFCCC) to seek redress for loss and damage associated with climate change impacts has triggered the interest in tort law remedies for climate change damage. This article analyses the relevance of tort law for climate change damage from a civil liability perspective. It indicates the positive features of tort law for the protection from climate change (generally available instrument for compensation of losses with considerable preventive effects), but it shows also that civil actions against the emitters of greenhouse gases for the remediation of climate change damage encounter major legal difficulties: choice of jurisdiction, enforcement of claims and some basic shortcomings of substantive tort law (narrow concept of damage, establishment of causation and fault). In order to make tort law an effective instrument for climate protection it must be adjusted to the characteristics of climate change damage. This concerns the attribution of legal standing, especially with respect to pure economic loss, a considerable extension of the right to bring collective action and, in order to solve the problem of the establishment of causation, the comprehensive recognition of proportional liability by national tort laws.The article also shows that tort liability already plays an important role for the remediation of climate change damage. This concerns liability claims against persons or institutions who are legally obliged to protect individuals or objects from harm caused by climate change (public authorities, providers of building services) and against sellers of products or providers of services who do not meet mandatory emission or energy consumption standards. Liability claims against such defendants do not encounter any of the specific problems associated with climate change damage and can serve to prevent climate change related harm.