Private Law Theory

ABSTRACT
Around the world, plaintiffs exposed to climate harms or hazards are filing tort lawsuits against private corporations. Most legal experts argue that these lawsuits are dead on arrival because tort law is ill-suited to the problems posed by climate change. In this article, I try to prove the opposite. I will illustrate that causation is no longer an intractable problem and that plaintiffs have a good chance of proving their claims in court. Moreover, imposing a duty of care on major greenhouse gas (GHG) emitters is not arbitrary or unfair, but consistent with wellestablished tort doctrine and case law. Applying the principle of several liability, major GHG emitters should be held liable in proportion to their contribution to the climate harm or hazard suffered by the plaintiff. To build my argument, I draw on a promising but often overlooked climate liability case from Germany: Lliuya v RWE. As the concepts of causation and duty of care share a common core across jurisdictions, my analysis of German doctrine and case law should be insightful for climate liability lawsuits around the world.

Schirmer, Jan-Erik, Climate Liability: Causation and Duty Demystified (January 31, 2025).