Amid the ESG pushback, one thing that isn’t slowing down is climate litigation. A number of pending tort cases argue that carbon majors should pay for damages related to climate change. However, complexities of climate change and the rise in global temperature often make it difficult to attribute causation for climate events to individual defendants. Last week, Lawrence wrote about a new paper published in Nature that promotes an “end-to-end” attribution method for plaintiffs that uses climate modeling to assign damages to actors. I thought I’d break down some of the methodology behind the headline and give a brief legal analysis. The paper describes the attribution methodology, stating:
“Source attribution often uses an emissions-driven climate model to simulate historical climates and counterfactual climates, in which the latter is the same as the former, save for the removal of one emitter’s time-varying emissions (that is, a ‘leave-one-out’ experiment). The difference between the two simulations represents the contribution of the removed emitter, providing a test of ‘but for’ causation: but for the emissions of this actor, the climate would have been thus.”
The breakdown of the full methodology is beyond the scope of this blog, but essentially, researchers claim that by removing one actor from the modeling, they can determine that actor’s contribution to overall warming by comparing the difference between the model and reality. Then, using pattern scaling techniques, scientists can tie global temperature change to local change, thus allowing them to determine an actor’s contributions to specific heat events. Currently, the attribution method can only be used to attribute an actor’s emissions to heat-based events such as Oregon’s extreme heat event in 2021. However, in the future, this methodology may be adapted to extreme weather events and sea level rise.
This research could prove useful to plaintiffs in tort litigation as it provides a model for calculating causation and specific damages. Currently, legal theories like general causation and market share liability often carry a high burden of proof and aren’t applicable in all jurisdictions. A sound methodology for proving specific causation and damages could bolster plaintiffs’ claims and reduce the cost of bringing climate litigation. The methodology isn’t without its detractors, but the true test will be whether plaintiffs incorporate the methodology into climate litigation and if courts accept the arguments. As climate cases progress, we’ll be keeping an eye on this to see how it impacts the litigation landscape.
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