Scales: Courts Not Up to Task of Litigating Climate Change
The Fifth Circuit's recent ruling in Comer v. Murphy Oil, in which it held that Hurricane Katrina victims were entitled to litigate their damages under a theory that oil companies had contributed to the storm through fossil-fuel emissions, is, by any measure, a big deal. But according to Prof. Adam Scales of Washington and Lee School of Law, the holding opens a Pandora's Box for a courts system inherently incapable of handling such a huge question. From the TortsProf Blog:
I have profound reservations about the claim, implicit in nominally private climate change litigation, that the tort system is capable of specifying rights and responsibilities on the subject of global warming. I like to tell my students that we have a tort system designed for horse-and-buggy accidents. In fact, this is unduly generous. The tort system cannot even handle simple car accident cases without tremendous delay and inefficiency - and this is with the assistance of a claims-settling insurance bureaucracy that pre-determines the vast majority of outcomes.
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It is thus a little surprising to see climate change activists so hopeful about reliance on today's tort law, as opposed to the tort law of a few years ago. Tort law tends to rise and fall with the political winds; perhaps climate change action will strike judges (who shrink from charges of judicial activism), juries (decreasingly sympathetic to plaintiffs, and fed a diet of "crazy tort stories" in the media) and legislators (who have not been shy in recent years about pre-termitting disfavored tort claims on behalf of important economic interests) as so urgent that it will constitute an exception in this era of retrenchment. I don't think that is likely, and I hope it doesn't happen. It is questionable whether any political system is capable of marshaling the extravagantly complex and overdetermined series of relationships that drive global emissions into an effective consensus for change. I am fairly certain, however, that the small, inwardly-focused, intuitive, largely undemocratic cross-section of the political system that is tort law is not up to the task.
Prof. Scales may be right -- we do, after all, have a system of redress for private grievances that hasn't changed very much in 220 years -- but that's no reason to label the question a political one and to cop out on the issue altogether. Admittedly, there are no more horses and buggies, but the fact that industry has evolved at a faster clip than has the judiciary is no excuse for punting on complicated but compensable injuries. Buggies have been replaced by smokestacks and horses by carbon emissions, but if plaintiffs can prove injury under either hoof, then they deserve a chance to do so, despite the enormity of that hoof.
And if, ultimately, Ned Comer fails to demonstrate proximate cause with requisite proof, then the courts ought to say so. But, simplicity of our system of litigation notwithstanding, he deserves that chance.
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