Better Attribution Studies Could Make Governments, Businesses Liable for Climate Impacts

A new “fusion of science and the law” may soon make it possible to hold governments, infrastructure companies, and the professionals they employ responsible for the loss and damage caused by extreme weather and climate change, lawyers Sophie Marjanac and Lindene Patton report, in a recent guest post for Carbon Brief.

While attribution studies date back to 2003, they’re getting better and better at establishing a link between human greenhouse gas emissions and their impact on severe weather. “This breakthrough will galvanize future climate change litigation,” Marjanac and Patton write.

“From a legal view, the information that attribution studies provide about the increased characteristics of extreme weather events—such as heat waves, droughts, or storms—is crucial. Having the ability to foresee damage is a key requirement in establishing a duty of care in many legal systems.”

The post cites three pillars of attribution science: data quality, the ability to model climate events, and an understanding of the “physical processes that drive climate events and how these are being affected by climate change.” Given the uncertainties of “an inherently chaotic weather system”, scientists express their results in terms of shifting risk, rather than stating that any individual event is “caused” by climate change.

But “the fact that the findings of event attribution studies are expressed probabilistically does not diminish the usefulness of this evidence for the law or liability,” the two lawyers write. “The law has shown flexibility in assessing harm resulting from ‘negligence’ (a type of legal wrong) where harm can only be proven using probabilistic methods.”

As attribution science improves, “governments and businesses may find that the bar is raised with respect to the expectations of the public and the law,” they note. “As our understanding of the future risk from climate change becomes more certain, governments may have corresponding legal duties to adapt physical infrastructure and disaster management plans to protect people and the environment.”

Businesses could be held responsible, as well, if they fail to factor climate risk into their decisions. “If architects, engineers, or builders use outdated building standards, or if codes are not updated to take into account exposures projected by advances in climate science, these companies and professionals may expose themselves to negligence claims.”