Archive for the ‘litgation’ Category

[Update] Climate change lawsuits: Does the difficulty of proving causation mean there is no harm?

April 8th, 2008 No comments

There is a new climate change lawsuit in US courts, this time by the Inuit inhabitants of an Alaskan village that will soon be rendered uninhabitable by the rapid erosion resulting from the year-round pounding of seas that were once frozen; the villagers are blaming man-made climate change and suing oil, coal and power producers.

Similar climate change damages are being felt throughout the high latitudes, as startling rises in temperatures mean that buildings and roads are falling apart (and petroleum firm’s drilling schedules are being interrupted) as permafrost melts, and villages and other structures (like NORAD radar sites) are being lost to erosion, and forests are dying and burning as winters are no longer sufficiently cold to kill pine bark beetle grubs. 

There are of course winners as well – there is a race for countries and firms to figure out how to profit from the melting North and the prospects of a seasonally ice free passage – but they are not the same as the losers, and libertarian approaches have never justified actions based on bottom line decisions of net utility.  Rather, the traditional view espoused by Austrians and other supporters of common law approaches is that property owners have a right not only to damages, but also to absolutely stop the activities of others who interfere with their property.

The new lawsuit (and others out there) faces a heavy burden of proof of causation, even if the relevant court doesn’t wimp out by concluding, as others have – clearly wrongly, from a common law perspective – that issues of damages relating to climate change are “political questions” that must be left to the recalcitrant federal legislature and President, and are not justiciable by courts.  Surely Austrians and others who would like to see a turning away from statist legislative or regulatory approaches should be welcoming this case and others like it as an opportunity to affirm that courts certainly do have a role in judging claims of climate damage and fashioning solutions – and are even preferable to centralized legislation.

There are obvious, severe difficulties in linking individual plaintiffs to individual defendants, difficulties that remain even if a class action were to be used to try to link with other defendants, and these difficulties may be sufficiently great that the Alaskan plaintiffs are left with nothing but legal fees.  But note that the difficulties are orders of magnitude higher when we consider linking any supposed climate change victims elsewhere around the world with fossil fuel producers and power companies also globally, as there simply is no available judicial systems, and costs of action are much higher (both absolutely and relative to income).  And litigation would be even more difficult if we are to consider other sources (such as the cement industry), other GHGs (methane and CFCs) and other human influences such as soot.

But surely the very difficulty in using litigation as a means of recourse does not imply that (i) those who may in fact be injured – or those who are concerned about their plight – are either pretending their injury or wrong to be seeking redress for it or (ii) that we as a members of a society should continue to prefer to do nothing about the way industrial activity is affecting a crucial and shared global resource.  Nor does it mean that we have to wait for irrefutable proof, satisfactory to all, before we recognize that the atmosphere, like the crashing ocean fisheries, has no owner and must be protected by human institutions if we don’t wish to see it seriously trashed.

As Mises himself noted, private property institutions themselves arose in response to the economic inefficiency of older systems that did not force economic actors to bear the external effects of their actions:  “Mises on fixing externalities”,  We are intelligent and occasionally rational creatures – why should we not be pro-actively considering what institutions might be desirable and feasible for dealing with the effects of our activities on the atmosphere and  climate (and oceans, ecosystems and unowned species, or how to improve governance in countries that don’t recognize or protect property rights)?

More on the lawsuit by Alaskan natives here:

[UPDATE:  More on the legal theory of this case and on other recent climate change cases here, by Matthew Pawa, one of the attorneys representing the Inuit:]

More on Austrian approaches to climate change here: (a debate) (a debate)

–  Sheldon Richman, in his essay  “The Goal Is Freedom: Global Warming and the Layman”, in the December 8, 2006 edition of The Freeman:;

–  Gene Callahan, in his essay “How a Free Society Could Solve Global Warming”, in the October 2007 issue of The Freeman:; and

–  Edwin Dolan, in his Fall 2006 Cato Journal essay, “Global Warming: Rethinking the Market Liberal Position”


Categories: AGW, Callahan, climate, Dolan, litgation, mises, Pawa, Richman Tags: