Defending Climate Change Litigation: Threshold Issues

Richard O. Faulk, Gardere Wynne Sewell LLP
John S. Gray, Gardere Wynne Sewell LLP

Abstract

Climate change litigation faces significant obstacles. Traditionally, courts focus on individuals injured by acts, omissions or products traced to identifiable parties. Such a situation does not exist in climate change litigation. To the extent anyone is impacted by climate change, all persons are victims. Moreover, all persons are responsible for contributing to climate change in our daily activities. Although no one can be “ruled out” as a responsible person for the global situation, it is equally true that no one can be “ruled in” for any particular injury. Given the current scientific knowledge, reliably tracing specific harms (e.g., property damage) to the actions of specific defendants is impossible. Even if plaintiffs leap these hurdles, deciding the degree of responsibility and apportioning damages is a vexing problem – especially when courts lack jurisdiction over all potentially responsible parties. Because of these complex barriers, most courts have found themselves ill-suited to entertain climate change controversies, and have, for various reasons, declined to decide them.