Bridget Pals, ‘Taxes v Torts: Which Will Make Fossil Fuel Producers Share Climate Change Burdens?’

INTRODUCTION
… After examining the theoretical and practical trade-offs between regulatory and tort approaches and considering the unique confines of the global oil market, I conclude that regulatory approaches should be used to address mitigation costs, while tort liability is best suited to recuperate backward-looking adaptation costs. This Note proceeds as follows. First, Part I describes the costs associated with climate change and, in so doing, lays the groundwork for my argument that mitigation and adaptation costs should be addressed with different strategies. Part II investigates who should pay those costs – the fossil fuel industry or consumers – and concludes that, as a normative matter, industry should bear at least some portion of the costs incurred by climate change, without passing the costs on to consumers. Part III discusses the general economic theory of pollution abatement and the theoretical models of mitigating climate change under regulatory and tort schemes, in order to better understand – in theory – how costs are borne by consumers and producers. Parts IV and V push beyond the theoretical ideals of tort law and regulatory schemes to ask, ‘how will this work in practice?’ Part VI applies these practical models to the unique context of the global oil market, leading to my conclusion that regulatory mechanisms are best suited to mitigation costs, while tort liability, because of its imperfect deterrence, is best used to cover adaptation costs.

Bridget Pals, Taxes v Torts: Which Will Make Fossil Fuel Producers Share Climate Change Burdens? (2021) 29 New York University Environmental Law Journal 235.

First posted 2021-07-03 08:00:37

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