As Professor Osofsky explains in her commentary, the AEP Court explicitly endorses the regulatory route for addressing emissions that contribute to climate change, rather than providing a parallel track in the courts through injunction. Even if a regulatory regime could achieve emissions reductions objectives more effectively than tort law, however, CJ claimants have lost the ability to confront major emitters and gain redress for their particular—and disproportionate—injuries. So while tort law, and the accompanying judicial process, introduces the complex web of claims and potential defendants that Professor Gerrard describes, it also provides a unique way for CJ claimants to face major emitters, argue that they have been injured, and demonstrate that defendants have an obligation to make amends for that wrong.

Public nuisance theory, in particular, serves as a potentially effective corrective justice mechanism for CJ claimants because it focuses on the nature of the harms plaintiffs suffer. Native Village of Kivalina v. ExxonMobil Corp., another pending public nuisance case that faces an uphill battle after AEP, is a paradigmatic example of CJ by virtue of its plaintiffs and the nature of their claims. Plaintiffs seek monetary damages for the past and ongoing emissions of several major oil, coal, gas and utility companies. Kivalina has almost 400 residents, 97 percent of whom are Alaska Natives. The village is traditional Inupiat and is located at the tip of a six-mile-long barrier reef. Plaintiffs allege that climate change has severely harmed Kivalina’s people and property by reducing the sea ice that acts as a protective barrier to coastal storms. The storms and waves are destroying the land with such severity that the entire community must now relocate further inland. Government estimates have determined that the cost of relocation falls between $95 million and $400 million.

The Inupiat are among the most vulnerable to climate change and yet have produced insignificant emissions. The current regulatory infrastructure for reducing emissions does not respond to the specific needs of these plaintiffs. For them, a viable tort claim is a means to achieve compensation for the loss of their property and to facilitate their relocation. Public nuisance theory, with its emphasis on the unreasonableness of a plaintiff’s injury, provides an appropriate focus for understanding climate impact claims. Instead of assessing the worth of a defendant’s actions—often riddled with the politics of wealth and power—nuisance law shines a spotlight on the unprecedented events climate change introduces. Public nuisance claims, as Professor Abate explains, may succeed where disparate impact litigation failed in the environmental justice context. They can provide the specific relief—funding for physical relocation in this case—that these particular CJ plaintiffs deserve. Even with a comprehensive regulatory scheme for emissions reduction in place, public nuisance law should remain a means by which climate-impacted communities can seek compensation from major emitters.

The decision in AEP forecloses federal common law public nuisance claims so long as the EPA retains regulatory authority over greenhouse gas emissions. The opinion further states that, even if the EPA decides not to regulate greenhouse gas emissions (or does so inadequately), the federal common law is not an available track to pursue such actions. That stance may negatively impact the ability for any court to address the individual claims based on specific harms brought by CJ plaintiffs—claims that are critical for achieving redress for these vulnerable communities.

The Court’s decision also betrays a skittishness in dealing with climate change suits generally, which underscores its failure to appreciate the deep injustices climate impacts introduce. Inexplicably, the AEP Court takes time in its relatively slender decision to inject doubt about elements of climate science. Abandoning the confidence demonstrated in Massachusetts v. EPA, the Court cites to a magazine article expressing doubt about climate change impacts as a counterweight to the voluminous peer-reviewed articles on which the EPA based its findings. Further, the Court pauses again to make a facile indictment of all breathing, sentient beings. In an instant, it dismisses the relative excess with which some have burned carbon for luxury and profit versus those who have for food and shelter.

This reluctance to address the justice elements of climate change is a legal phenomenon that exacerbates already dangerous climate effects. Over twenty years ago, David Caron explained that the law can create feedback loops that, like their counterparts in the physical world, amplify certain climate trends. A core purpose of law and the courts, particularly in a tort law context, is to provide recourse to those who have been wronged, especially if the wrongs involve the loss of life or property. If at every turn there is no avenue for remedy, the law and its institutions risk being perceived as an ineffective means to acknowledge and correct injustice—especially from the vantage point of the climate vulnerable. This denies the least responsible their day in court and further delays—if not, excludes—any possibility of being made whole.

Moving forward from the AEP decision, the lower courts have a choice about how they treat the unresolved alternative avenues for tort relief. If the lower courts make the distinction between the injunctive relief sought in AEP and the compensatory relief sought in Kivalina and recognize the corrective potential of compensation claims and their role in administering the process, the disparately impacted may enjoy appropriate recourse. Opening their doors to climate tort claims would be the courts’ distinct contribution to what will hopefully be a diverse and multi-layered commitment to rectifying, at least in part, the losses of the climate vulnerable.

Maxine Burkett is an Associate Professor of Law at the William S. Richardson School of Law at the University of Hawaii.

Preferred Citation: Maxine Burkett, Climate Justice and the Elusive Climate Tort, 121 Yale L.J. Online 115 (2011), http://yalelawjournal.org/forum/climate-justice-and-the-elusive-climate-tort.