New Horizons in Environmental and Energy Law series
Edited by Michael Faure and Marjan Peeters
Chapter 8: Liability for Climate Change-Related Damage in Domestic Courts: Claims for Compensation in the USA
1 Elena Kosolapova INTRODUCTION 1. The past decade has seen a rise in national climate change litigation worldwide. Notably, until today, no greenhouse gas emitter has been found liable for climate change by any domestic court. In accordance with the relief sought by plaintiffs, climate change case law can be roughly organised into three categories: (1) claims related to procedural injury; (2) claims for injunctive and/or declaratory relief; and (3) claims for compensation. In addressing procedural, and not actual, injury, procedural justice does not offer any immediate relief to plaintiffs already suffering from injurious effects of climate change. Injunctive relief – a court order requiring a party to do, or to refrain from doing, certain acts – is a form of relief ultimately related to climate change mitigation due to its preventive character; it is unhelpful in cases concerned with the dangerous effects of climate change that have already taken place. Thus, compensation claims become relevant when adaptation to and remediation of the already happening climate change is at stake. Climate change-related compensation claims are the focus of this chapter. After a brief introduction (section 2.1), sections 2.2 to 2.4 summarize compensation claims adjudicated thus far worldwide, all three of which have been brought in the United States. The United States remains the only developed country without a mitigation policy based on the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change and given its common law litigation tradition, it is not surprising that it is in the US...
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