New Horizons in Environmental and Energy Law series
Edited by Michael Faure and Marjan Peeters
Chapter 2: Liability with and Liability from the Precautionary Principle in Climate Change Cases
1 Miriam Haritz Is it appropriate to use the (precautionary) principle to answer the question, not ‘What should we do tomorrow’ but ‘What should you have done yesterday?’ and, depending on the answer, impose liability?2 1. SCIENTIFIC UNCERTAINTY IN CLIMATE CHANGE Over the past decade, an intensification of weather-related natural catastrophes has been experienced all over the world. Flooding and heat waves struck almost every continent, and the names of hurricanes like Katrina, Wilma, Rita and Stan, which hit with more frequency and increased destructive force North and Central America and the Caribbean, received wide media attention.3 Insurance statistics show that there has indeed been an increase in the amount of damage resulting from that type of natural catastrophe, be it insured or uninsured.4 Increasingly, these incidents are being attributed to the consequences of global warming next to its longterm effects on climatic patterns.5 The aim of this chapter consists of taking into account these perceived and predicted effects to the extent relevant to a climate change liability claim. As will be explained, many difficulties arise when trying to define the exact range of such a claim in various ways. Scientific uncertainties that surround climate change science reflect onto legal uncertainties when trying to adjudicate the consequence of climate change. It is the context of such uncertainties that this chapter then analyses the possible contribution of the precautionary principle. Whilst in particular the evidence presented in the consecutive reports of the Intergovernmental Panel on Climate Change (IPCC)6...
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