Attribution for Climate Torts

This Article argues that advances in climate science overcome key challenges to U.S. climate tort lawsuits by making it possible to attribute specific climate damages to human contributions to greenhouse gases. In the absence of comprehensive statutory regulation or executive action on greenhouse gas emissions, those seeking to mitigate and compensate the harms of climate change are turning to tort law as a tool of last resort. They are filing common-law negligence and nuisance claims against high-emitting industries like fossil fuel producers, electric utilities, and car manufacturers, for their contributions to the physical and economic impacts of climate change. This Article comprehensively reviews and systematically analyzes the climate science referenced in U.S. climate tort lawsuits and concludes that the state of science in such suits lags available methods. It demonstrates that novel methods of climate attribution can overcome obstacles that have previously frustrated tort lawsuits such as injury in fact, redressability, and causation. Climate attribution methods share important features with epidemiological methods that have been accepted by courts in toxic tort litigation since the 1970s. This Article has implications for climate tort lawsuits currently pending in state courts, and more broadly for efforts to establish causal linkages for climate change.