Basic Liability for Major Contributors to Climate Change: Comment on Basic Compensation for Victims of Climate Change

August 2008
Citation:
38
ELR 10533
Issue
8
Author
Peter Lehner and William E. Dornbos

Daniel Farber's excellent and timely article, Basic Compensation for Victims of Climate Change, offers a thorough analysis of a possible compensation system for victims of climate change. He canvases various types of injuries from climate change and several existing compensation schemes. His work will surely start an important Dialogueue.

Farber points to several policies favoring compensation for victims, including the culpability of emitters based on their knowledge of the harms they are contributing to, deterrence, social solidarity with victims, an insurance function, and remedying unjust enrichment. These are all sound policy arguments, but we suggest that the prior issue of liability--whether existing law favors holding emitters responsible for the injuries they cause or contribute to--also deserves serious attention.

Peter Lehner is Executive Director of the Natural Resources Defense Council (NRDC) and was Chief of the New York Attorney General's Office's Environmental Protection Bureau from 1999 to 2006. In that capacity, he was deeply involved in briefing Massachusetts v. EPA, 127 S. Ct. 1438 (2007), where the U.S. Supreme Court found that carbon dioxide (CO2) was a pollutant under the Clean Air Act and that states had standing to pursue claims arising from global warming. Lehner was a lead counsel in Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265, 35 ELR 20186 (S.D.N.Y. 2005), pending on appeal, No. 05-5104 CV (2d Cir.), a nuisance action brought by several states against the five largest carbon dioxide emitters in the United States. The district court dismissed the case on political question grounds; the Second Circuit heard argument on the appeal in June 2006 and has not yet ruled. William E. Dornbos is an attorney with NRDC and serves as a Special Aide to NRDC's President and Executive Director.
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Basic Liability for Major Contributors to Climate Change: Comment on Basic Compensation for Victims of Climate Change

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