Kysar on the Duty of Climate Care

Douglas Kysar has posted to SSRN The Duty of Climate Care.  The abstract provides:

A motivational saying popular within the climate advocacy movement advises, “It’s never too late to do your best.” With respect to climate change, political representatives instead seem to have followed the adage, “It’s always too soon to care.” Is it any wonder, then, that advocates have turned to the courts in pursuit of meaningful declarations of climate responsibility?

Across the world, litigants in numerous jurisdictions have filed actions against both public and private defendants, seeking to instantiate a duty of climate care. They have invoked constitutional and human rights claims, but also tort law to ground this duty. Indeed, some advocates have explicitly called for the creation of a new tort, seeking to invoke the centuries-long power of common law judges to fashion duties to address changing social circumstances. Never mind that the circumstances at issue involve the largest and most challenging collective action problem ever to face humanity. With the political branches failing their most basic obligation to preserve the ecological foundation of social order, courts are being called upon to fashion a jurisprudence of climate care.

This paper explores conceptual issues raised by a duty of climate care. Regardless of how a climate responsibility cause of action is framed, courts must confront the difficult question of why the defendants named in any given action should be singled out for judicial scrutiny from among the many billions of present and past human emitters. That question in turn raises issues regarding the institutional authority and competence of courts. Neither concern is insurmountable as a doctrinal and practical matter. But along the road to ultimate resolution of a climate accountability case, courts face numerous tempting exit opportunities. Will judges agree that it’s never too late to try their best?