Clyde & Co Resilience Climate Change Risk Liability Report

Liability and the evolving litigation landscape

High stakes Activists are attempting to use this route to force change, but they are not the only types of plaintiffs involved. States and cities are now seeking to recoup the costs of infrastructure projects and urban development plans they say are required to enable them to withstand higher sea levels or more frequent extreme weather events. Importantly, the losses sought are generally future losses rather than existing ones. Such actions are already gathering pace across the US, for example in California, Colorado, New York and Baltimore, though nonehas yet achieveda successful outcome. “The stakes are high,” warns Neil Beresford. “It only takes one jury to accept the climate science toset off a landslideof similaractions.” “At the moment, the biggest risk from tort claims is from activists looking to drive change and gain exposure rather than seeking financial damages. However, if we do start to see significant damages awards, the plaintiff bar will take a greater interest. This new area of exposure is a real risk for companies and their insurers.”

Nigel Brook agrees, pointing out that attribution science could have a key role to play here. “If plaintiffs can convince a court that a certain percentage of a storm surge or drought conditions was driven by climate change that in itself was brought about by the defendants, that would open up whole new categories of liability,” he says. The defendants have numerous arguments at their disposal. Their primary goal is to obtain rulings that the cases should be heard in federal court.That should improve the quality and consistency of decision- making. They also argue that the lawsuits transcend the powers of an ordinary court. Climate change is such a complex and wide-ranging issue, operating on such a global scale, that only the executive and legislative arms of government can address it. Whatever the court’s view on the causes of climate change, it is not for a judge or jury to begin injuncting the sale of petroleum.

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