Page - 182 - in Loss and Damage from Climate Change - Concepts, Methods and Policy Options

182 F.SimlingerandB.Mayer Leghari, are often limited to the territory of the state: they do not usually provide ground for a Court to recognise the obligation of a state to address L&Dbeyond itsownjurisdiction. International law,on theotherhand,cansometimesbe invoked before domestic courts in support of public litigation, as illustrated in the case of Urgenda,althoughnationalcourtsareoftenreluctant toimplement international law obligations. 7.2.2 PrivateLawLitigation Privatelawlitigationshedslightontheobligationsofanyperson(individualorgroup grantedlegalpersonalitywithinaparticular legalsystem)towardsanother.Courts in commonlawjurisdictionsapplyvariousconceptsof“tort”suchasnuisance,trespass, ora risk-basedregimeofstrict liability.Bycontrast, courts incivil lawjurisdictions refer to particular provisions of their respective Civil Code on “extra-contractual responsibility.” Absent more specific statutory developments, Courts in civil law jurisdictionscould theoreticallyplayanextensive role in interpretingsuchprinciple of responsibility to thecontextof climatechange. Private law litigation onL&Dface amyriad of hurdles and, to date,most have beenunsuccessful.Afirsthurdle is the issueofattribution. It isgenerally impossible toattributeacertainclimatic event tohuman inducedclimatechange, andcertainly not to the emissions of a specific person or entity.While it is beyond doubt that GHGemissions, as a general proposition, cause harm, it is currently impossible to tracespecificdamages tocertainemitters.Most legalsystemsrequireadirectcausal relation for damages to be granted, but climate science only offers probabilistic attribution(seee.g.Palletal.2016).Someauthorshavesuggestedthatcourtsshould applyamodifiedgeneralcausationtestashavesometimesbeendevelopedon“toxic tort cases” (Grossman 2003: 23). It would accordingly be sufficient to prove that GHG emissions are generally capable of causing damages and that a causal link between action and damage is probable thus render the requirement to attribute a specific climatic event to the emissions of a specific person or entity unnecessary (Grossman2003). Asecondhurdle is thedeferenceof the courts toother branchesof government. Courtshaveusuallybeenreluctanttotouchmatterswhichrequireafine-tunedbalance between different interests, especiallywhen the executive and the legislature have alreadyseizedthemselvesof thematter.Theseconcernsmaybephrasedintheterms of the “political question doctrine” in theUnitedStates or inmore or less implicit considerations of the “justiciability” of disputes brought before domestic courts in other jurisdictions. This is an even greater obstacle in civil law countries, where courts areposited to simplyapply the lawcreatedby the legislativebranch. InAmericanElectricPowerCo. v.Connecticut theUSSupremeCourt regarded the allegednuisanceconstitutedby thegreenhousegas emissionsoffiveUSpower utilities. Itunanimously rejected theclaimin2011on theground that the regulation ofgreenhousegasemissionsbytheEnvironmentalProtectionAgencyprecludedthe