Authored By: Harleen Kaur
Army Institute of Law, Mohali
Introduction
The global climate crisis has transitioned from an abstract environmental warning into an active arena for domestic legal confrontation[1]. As extreme weather events increase in both frequency and severity, aggrieved plaintiffs are turning to judicial forums to seek accountability from carbon-major corporations and state entities. Traditional environmental law frameworks, anchored heavily in prospective statutory compliance, often fail to address retroactive damages or compel systemic emission reductions.[2] Consequently, litigants are increasingly relying on public nuisance, negligence, and constitutional tort doctrines to bridge this regulatory deficit.
This judicial paradigm shift presents profound doctrinal challenges for domestic private law systems. Tort law was historically forged to resolve localized, linear harms where an identifiable defendant directly caused a discrete injury to a specific plaintiff. Climate change, by contrast, is characterized by its diffuse, cumulative nature, involving billions of historical emitters and non-linear ecological feedback loops. When an individual property owner sues a fossil fuel conglomerate for coastal erosion, tracking a direct line of liability becomes an immense structural puzzle. The doctrines of proximate cause and specialized injury, as currently constructed, offer highly fractured solutions[3] to an inherently systemic global crisis.[4]
This article argues that traditional tort frameworks are structurally ill-equipped to handle the systemic nature of climate-induced harms without a modernized judicial interpretation of attribution science and relaxed causation thresholds. It contends that maintaining rigid, twentieth-century standards of proximate cause creates an absolute shield for systemic polluters, insulating them from accountability.[5]
The article proceeds as follows: Section II delineates the operational legal frameworks across common law jurisdictions. Section III evaluates the scientific and legal boundaries of proving causation and attribution. [6]Section IV provides a comparative analysis of pioneering approaches in foreign courts, and Section V outlines a actionable path forward for modernizing domestic judicial approaches to climate torts.
The Existing Legal Framework
Public and Private Nuisance
The foundational doctrine leveraged by climate litigants in common law jurisdictions is the law of nuisance. A public nuisance claim requires proving an unreasonable interference with a right common to the general public, typically affecting public health, safety, or comfort[7]. In climate actions, plaintiffs assert that the mass extraction, marketing, and combustion of fossil fuels unreasonably disrupt the global climate system, thereby threatening public infrastructure and communal safety[8]. Private nuisance claims, conversely, focus on the substantial and unreasonable interference with an individual’s private use and enjoyment of their land, such as rising sea levels submerging private beachfront property.
However, nuisance claims frequently encounter substantial procedural roadblocks, particularly regarding federal preemption or legislative displacement. Courts often rule that complex greenhouse gas regulation is a policy matter delegated by constitutional design to legislative and executive bodies, rather than the judiciary. For example, in the United States, the Supreme Court held that the Clean Air Act displaced federal common law public nuisance claims against power plants, concluding that Congress had already designated the Environmental Protection Agency as the regulatory authority.[9] This leaves plaintiffs relying on a patchwork of state common law claims, which face intense resistance regarding their jurisdictional scope.[10]
Negligence and the Duty of Care
Litigants also frame climate damage through the lens of negligence, asserting that carbon-major companies breached an established duty of care by continuing to promote fossil fuel consumption despite possessing internal scientific knowledge of its catastrophic consequences. To establish a prima facie case of negligence, a claimant must demonstrate a duty of care, a breach of that duty, a close causal link, and measurable damages[11]. The primary hurdle here is establishing that a specific corporate defendant owed a localized duty to a specific global citizen, given that greenhouse gas emissions mix uniformly throughout the global atmosphere[12].
The determination of breach is equally complex, requiring a balancing of the utility of the defendant’s conduct against the magnitude of the risk. Historically, fossil fuel extraction carried immense societal utility, powering the global industrial economy. Plaintiffs counter this by emphasizing corporate deception[13], showing that major energy companies explicitly misled the public and investors about climate risks for decades[14]. While this exposure of corporate deception strengthens claims of a breach, it still leaves the challenging task of connecting that specific corporate misbehaviour to a distinct localized extreme weather event.
The Challenges Posed by Climate Change Litigation
The Obstacle of Probabilistic Causation
The most formidable barrier in climate change tort actions is satisfying the traditional “but-for” causation test. Under this standard, a plaintiff must prove by a preponderance of the evidence that their specific injury would not have occurred but for the specific defendant’s greenhouse gas emissions[15]. In climate change scenarios, this is scientifically impossible. Greenhouse gas molecules are chemically indistinguishable once released into the atmosphere[16]; a molecule emitted by a refinery in Texas mixes completely with a molecule generated by a coal plant in New Delhi.
Because the atmosphere is a global commons, no individual localized injury can be attributed entirely to a single market entity.
To bypass this absolute barrier, plaintiffs are urging courts to adopt a probabilistic framework rooted in quantitative risk enhancement. Instead of proving absolute direct causation, plaintiffs leverage extreme event attribution (EEA) modeling to demonstrate that a defendant’s emissions significantly increased the statistical probability of the weather event occurring[17]. However, traditional common law courts remain deeply skeptical of statistical probabilities, often holding that general environmental trends fail to establish the specific proximate causation required to assign civil liability[18].
The Indeterminacy of Plaintiffs and Multiple Defenses
The diffuse nature of climate change creates an atmospheric matrix of multiple concurrent causes, complicating accountability[19]. When a severe flood ravages a municipal district, the damage results from an intersection of global temperature increases, localized cyclical weather trends, historical land-use choices, and potentially inadequate local flood infrastructure. Defendants effectively utilize these compounding factors to argue that their individual operational footprint constitutes an entirely de minimis fraction of global emissions, making it inequitable to hold them financially responsible for the broader ecological collapse[20].
Comparative Perspectives
The European Union and the Netherlands
The European judiciary has established some of the most progressive precedents for climate accountability worldwide. In the landmark case State of the Netherlands v. Urgenda Foundation, the Dutch Supreme Court affirmed that the state possessed an explicit duty of care under Articles 2 and 8 of the European Convention on Human Rights (ECHR)[21] to protect citizens from the real and imminent dangers of climate change[22]. Crucially, the court rejected the state’s argument that its individual emissions were globally minor, ruling that every country is obligated to prevent dangerous climate change, regardless of its total share of global emissions.
This rights-based accountability was soon extended to private corporate entities. In Milieudefensie v. Royal Dutch Shell, the District Court of The Hague ordered a major multinational energy corporation to reduce its global net carbon dioxide emissions across its entire value chain by an absolute 45% by 2030 relative to 2019 levels[23]. The court anchored this sweeping corporate mandate in the unwritten standard of care of the Dutch Civil Code, interpreted through the lens of the UN Guiding Principles on Business and Human Rights[24]. This effectively demonstrated that private corporate practices could be systematically regulated through tort standards informed by international human rights law.
Common Law Developments: Global South Perspectives
In the Global South, courts are increasingly employing constitutional rights to bypass the strict procedural hurdles of traditional private tort claims. The Supreme Court of India has consistently integrated environmental protection into Article 21 of the Constitution, which guarantees the right to life[25]. In a major development, the Supreme Court explicitly recognized a distinct fundamental right to be free from the adverse effects of climate change, anchoring it within both the right to life and the right to equality guaranteed by Article 14[26].
This constitutional approach bypasses the difficult task of establishing a personal common law duty of care or direct localized causation[27]. By framing climate change as a direct threat to constitutional survival, courts can issue structural injunctions and direct regulatory bodies to align their enforcement frameworks with global emission-reduction targets[28]. This demonstrates a distinct shift from compensatory common law solutions toward systemic constitutional remedies.
Proposals for Judicial and Statutory Reform
To ensure that domestic tort law remains a viable pathway for climate justice, courts must update their interpretation of causation to align with contemporary attribution science. Judges should adopt a Market-Share Liability Framework for climate claims, mirroring the approach used in complex product liability cases involving indistinguishable pharmaceutical designs[29]. Under this model, carbon-major corporations would be held liable for regional climate damages in direct proportion to their mathematically verified contribution to historical global greenhouse gas emissions[30].
Furthermore, legislatures should enact dedicated statutory Climate Tort Acts to explicitly eliminate federal displacement defenses and lower evidentiary barriers for plaintiffs[31]. This legislation should establish a rebuttable presumption of proximate causation whenever a plaintiff demonstrates that an extreme weather event was statistically intensified by climate change, and that the defendant’s historical emissions exceeded a specific threshold[32]. These acts should also mandate the creation of a national climate mitigation fund financed by corporate tort damages, shifting the financial burden of climate adaptation from vulnerable municipalities to the corporate entities that profited from atmospheric degradation.
Conclusion
The intersection of tort law and climate science represents a critical evolution in common law jurisprudence. As demonstrated throughout this analysis, traditional definitions of proximate cause and localized duties of care function as systemic barriers to accountability, allowing major polluters to externalize the environmental costs of their business models onto the public. By continuing to apply an individualized, localized framework to an atmospheric crisis, traditional judiciaries risk becoming tools of structural climate inaction[33].
The pioneering decisions emerging from European and Indian courts show that traditional private law doctrines can be adapted to address systemic global crises. Transitioning from rigid “but-for” metrics toward probabilistic causation and proportional market-share liability represents a necessary evolution in corrective justice. Implementing these reforms through updated judicial interpretations and targeted statutes will allow domestic tort law to transform from a static regulatory framework into an active mechanism for global environmental accountability[34].
Bibliography
Cases
Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011).
City of Oakland v. BP p.l.c., 326 F. Supp. 3d 916 (N.D. Cal. 2018).
County of San Mateo v. Chevron Corp., 32 F.4th 1153 (9th Cir. 2022).
Great Indian Bustard v. Union of India, 2024 S.C.C. OnLine S.C. 451.
Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1.
C. Mehta v. Union of India, (1987) 1 S.C.C. 395.
Rechtbank Den Haag [District Court of The Hague], 26 May 2021, ECLI:NL:RBDHA:2021:5079 (Milieudefensie/Royal Dutch Shell plc).
Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 20 December 2019, ECLI:NL:HR:2019:2007 (State of the Netherlands/Urgenda Foundation).
Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980).
Virender Gaur v. State of Haryana, (1995) 2 S.C.C. 577.
Statutes and Treaties
Climate Big Oil Liability Act, S. 4321, 118th Cong. (2024).
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.
Restatement (Second) of Torts (Am. Law Inst. 1979).
Restatement (Third) of Torts: Liability for Physical and Emotional Harm (Am. Law Inst. 2010).
Secondary Sources
Burger, Michael & Jessica Wentz, Holding Fossil Fuel Companies Accountable for Their Contribution to Climate Change: The Role of Attribution Science in Litigation, 42 Colum. J. Envtl. L. 395 (2017).
Franta, Benjamin, Early Oil Industry Knowledge of CO2 and Global Warming, 8 Nature Climate Change 1029 (2018).
Heede, Richard, Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010, 122 Climatic Change 229 (2014).
Hunter, David & James Salzman, Negligence in the Air: The Duty of Care in Climate Change Litigation, 155 U. Pa. L. Rev. 1741 (2007).
Kysar, Douglas, Regulating from Nowhere: Environmental Law and the Search for Objectivity (2010).
Lazarus, Richard J., Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153 (2009).
Otto, Friederike E. L., Attribution of Extreme Weather Events in the Context of Climate Change, 41 Ann. Rev. Earth & Planetary Sci. 457 (2017).
Peel, Jacqueline & Hari M. Osofsky, Climate Change Litigation’s Regulatory Pathways, 116 Am. J. Int’l L. 132 (2022).
Rajamani, Lavanya, The Emergence and Evolution of Climate Change Litigation in India, 21 Indian J. Int’l L. 112 (2023).
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[1]Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report 42–45 (2023).
[2]Jacqueline Peel & Hari M. Osofsky, Climate Change Litigation’s Regulatory Pathways, 116 Am. J. Int’l L. 132, 135 (2022).
[3] Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 1160, 1168 (9th Cir. 2012).
[4] Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153, 1159 (2009).
[5] Douglas Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity 71–74 (2010).
[6] Michael Burger & Jessica Wentz, Holding Fossil Fuel Companies Accountable for Their Contribution to Climate Change: The Role of Attribution Science in Litigation, 42 Colum. J. Envtl. L. 395, 401 (2017).
[7] Restatement (Second) of Torts § 821B (Am. Law Inst. 1979).
[8] City of Oakland v. BP p.l.c., 326 F. Supp. 3d 916, 922 (N.A. Cal. 2018), aff’d in part, rev’d in part, 960 F.3d 570 (9th Cir. 2020).
[9] Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 423–24 (2011).
[10] County of San Mateo v. Chevron Corp., 32 F.4th 1153, 1164 (9th Cir. 2022).
[11] Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1, 12 (India) (summarizing foundational principles of common law negligence).
[12] David Hunter & James Salzman, Negligence in the Air: The Duty of Care in Climate Change Litigation, 155 U. Pa. L. Rev. 1741, 1745 (2007).
[13] State v. Exxon Mobil Corp., 406 F. Supp. 3d 420, 432 (D. Md. 2019).
[14] Benjamin Franta, Early Oil Industry Knowledge of CO2 and Global Warming, 8 Nature Climate Change 1029, 1030 (2018).
[15] Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 (Am. Law Inst. 2010).
[16] Richard Epstein, Beware of Big Waves: Nuisance Litigation, State Common Law, and Climate Change, 121 W. Va. L. Rev. 857, 861 (2019).
[17] Friederike E. L. Otto, Attribution of Extreme Weather Events in the Context of Climate Change, 41 Ann. Rev. Earth & Planetary Sci. 457, 460 (2017).
[18] Washington v. BP p.l.c., 2024 WL 115678, at *4 (W.D. Wash. Jan. 10, 2024).
[19] Michael D. Green, The Future of Source Attribution in Climate Change Tort Litigation, 53 Wake Forest L. Rev. 909, 915 (2018).
[20] Lliam Harrison, Tort Law’s Greatest Challenge: Atmospheric Pollution and the Limits of Corrective Justice, 36 Oxford J. Legal Stud. 421, 428 (2016).
[21] Convention for the Protection of Human Rights and Fundamental Freedoms arts. 2, 8, Nov. 4, 1950, 213 U.N.T.S. 222.
[22] Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 20 December 2019, ECLI:NL:HR:2019:2007 (State of the Netherlands/Urgenda Foundation).
[23] Rechtbank Den Haag [District Court of The Hague], 26 May 2021, ECLI:NL:RBDHA:2021:5079 (Milieudefensie et al./Royal Dutch Shell plc).
[24] Office of the United Nations High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework 14–18 (2011).
[25] M.C. Mehta v. Union of India, (1987) 1 S.C.C. 395, 401 (India).
[26] Great Indian Bustard v. Union of India, 2024 S.C.C. OnLine S.C. 451, 32.
[27] Virender Gaur v. State of Haryana, (1995) 2 S.C.C. 577, 580 (India).
[28] Lavanya Rajamani, The Emergence and Evolution of Climate Change Litigation in India, 21 Indian J. Int’l L. 112, 115 (2023).
[29] Sindell v. Abbott Laboratories, 607 P.2d 924, 937 (Cal. 1980) (establishing market-share liability principles).
[30] Richard Heede, Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010, 122 Climatic Change 229, 234 (2014).
[31] Shi-Ling Hsu, A Cost-Benefit Analysis of Climate Change Litigation, 102 Mich. L. Rev. 305, 312 (2004).
[32] Climate Big Oil Liability Act, S. 4321, 118th Cong. § 3 (2024) (proposing statutory frameworks for corporate climate accountability).
[33] Mary Wood, Nature’s Trust: Environmental Law for a New Ecological Age 114–118 (2014).
[34] Rehan Abeyratne, The Right to a Clean Environment as a Constitutional Prerogative in South Asia, 18 Asian L. Rev. 45, 52 (2021).
