Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines

Abstract

The Article traces the origins of climate change litigation back to earlier forms of “public interest tort litigation,” including government actions against the manufacturers of cigarettes, handguns and lead pigment. Public interest tort litigation is different in kind from traditional tort actions, even asbestos and other mass products litigation. These new lawsuits address society-wide or even worldwide problems and seek judicially imposed regulatory regimes. As such, they more closely resemble civil rights litigation and what Abram Chayes deemed “the public law model” than they do earlier tort actions.

I conclude that the public law model of tort litigation is the wrong tool for addressing climate change. The U.S. Supreme Court likely will face the unique issues the climate change litigation raise, labeled as “standing,” “political question doctrine,” and the “federal common law of nuisance.” But the overarching issue is whether the judicial process is competent to address global climate change with all its intertwining ecological and economic factors. The lack of judicially discoverable and manageable standards, coupled with the problem’s extremely polycentric nature, render the promise of judicial solutions illusory. Appointed federal judges attempting to remedy such massive problems also conflicts with separation of powers. Courts should use justiciability doctrines - specifically standing and the political question doctrine, to avoid the invitation to regulate greenhouse gas emissions. Traditionally regarded as out of place in the world of common law torts, these doctrines’ underlying purposes warrant their application to climate change litigation.

Keywords: climate change, torts