What climate change can do about tort law. (2024)

I. INTRODUCTIONII. CLIMATE CHANGE AS THE ANTI-TORT A. Duty/Proximate Cause B. Breach C. Causation D. HarmIII. CLIMATE CHANGE AS TORT REFORM A. Duty/Proximate Cause B. Breach C. Causation D. HarmIV. CONCLUSION

I. INTRODUCTION

Climate change is coming to the common law. Plaintiffs in severalcases have pressed tort claims against carefully composed* groups ofgreenhouse gas emitting defendants, seeking monetary damages andinjunctive relief to lessen the threat and financial burden of climatechange's harmful impacts) Surprisingly, not all of these cases havebeen dead on arrival. Although malleable and expedient doctrines such asstanding, political question, and preemption might be invoked to justifydismissal, at least one climate change tort suit instead was poised toproceed to the merits, at least until the Supreme Court granted reviewof the Second Circuit Court of Appeals' refusal to dismiss the suiton justiciability grounds. (2) Depending on the outcome of that appeal,the question of whether greenhouse gas emissions constitute anactionable tort under federal or state law, much discussed in lawjournals, (3) may eventually receive full judicial airing.

Assuming that the Supreme Court does not act to prevent, climatechange tort suits from reaching the merits altogether, courts in alllikelihood will agree with commentators that nuisance and othertraditional tort theories are overwhelmed by the magnitude and thecomplexity of the climate change conundrum. (4) Built as it is on aparadigm of harm in which A wrongfully, directly, and exclusivelyinjures B, tort law seems fundamentally ill-equipped to address thecauses and impacts of climate change: diffuse and disparate in origin,lagged and latticed in effect, anthropogenic greenhouse gas emissionsrepresent the paradigmatic anti-tort, a collective action problem sopervasive and so complicated as to render at once both all of us andnone of us responsible. Thus, courts will have ample reason--not tomention doctrinal weaponry--to prevent climate change tort suits fromreaching a jury. To be sure, tort law may play a positive role inhelping to characterize the harms imposed by climate change, in singlingout avenues for efficaciously reducing those harms, and in rattling thecages of the political branches that are best situated to pursue thoseavenues. (5) As Professor J.B. Ruhl has emphasized, tort law may alsoplay a significant role in helping to establish standards of foresightand responsibility with respect to climate change adaptation needs. (6)Beyond such effects, however, tort law is unlikely to play a substantialrole in the ultimate effort to reduce greenhouse gas emissions.

But what might climate change suits do for tort law? That is,rather than serving to address the impacts of climate change, might tortlaw itself be impacted by climate change? This Article answers"yes." Just as earlier periods of unprecedented injury andloss of life contributed to significant changes in American tortdoctrine and practice, (7) an influx of climate change claims may forcea reevaluation of the existing system for compensating and deterringharm. Most significantly, the bar for exoticism in tort may shift ascourts are confronted by climate-related claims. Various suits that havefrustrated judges because of their scale, scientific complexity, andwidespread policy implications---such as claims involving toxic andenvironmental harm, tobacco and handgun marketing, or slavery andHolocaust reparations---may come to seem less daunting and intractablewhen juxtaposed against "the mother of all collective actionproblems."s Current debate over whether courts are engaging in"regulation through litigation" (9) may come to appear miscastin the face of suits that raise at once both an ordinary pollutionnuisance and a challenge to the very foundations of modern industriallife. (10) At long last, courts and commentators may come to view tortclaims in degrees of polycentricity, rather than in crude binary termsof conventional civil disputes, on the one hand, and political orregulatory matters, on the other. (11)

Should these developments occur, they will be salutary, as theywill help tort law to continue its role as backdrop and partner toenvironmental, health, and safety regulation. (12) Gradually andunevenly, the administrative state is evolving in response to thecomplex, uncertain, and potentially catastrophic nature of twenty-firstcentury threats to social welfare. Problems such as climate change,terrorism, infectious disease outbreaks, and financial marketinstability resist figuration within conventional regulatory frameworks,not least because their drivers and impacts span the globe and fallunder multiple agency mandates. Even garden variety regulatory taskssuch as ecosystem management and pharmaceutical regulation increasinglyare being seen to require new modes of governance, ones built on anunderstanding of risk regulation as a continual process ofexperimentation, monitoring, and adjustment in light of ever-presentprospects of unpleasant surprise. (13) Under this "newgovernance" framework, (14) regulatory targets are seen to beembedded within intricate systems that defy precise prediction andcontrol; rapidly evolving, globally interconnected, and wickedlycomplex, such systems do not yield to straightforwardcommand-and-control regulation or other familiar lawmaking forms. (15)Instead, governance only emerges from the decentralized, overlapping,and continually evolving interventions of public and private actors,each operating at different levels and from different spheres ofauthority, utilizing a range of policy tools both hard and soft, andrepresenting diverse interests and stakeholder groups. Rather than thehierarchical and near complete authority of the state, power withinthese systems is widely distributed and decidedly partial. Indeed, eventhe state itself increasingly is being seen as a complex tissue ofactors and networks, rather than a unified or even federally-stratifiedsovereign.

As regulatory law moves in response to these unprecedentedchallenges to the promotion of welfare (and new understandings of oldchallenges), tort law must move along with it in order to continue toserve as the administrative state's necessary backdrop. Given itsclassical liberal origins and its limited adjudicatory framework, tortlaw will always lag regulatory law in its embrace of a "systemsview" of risk and harm. Nevertheless, the era of climate changewill make certain trappings of classical liberalism-such as the presumedatomicity of private actors or the purely mechanistic depiction ofcausation--increasingly difficult to maintain, Just as railroad andworkplace carnage forced recognition of new forms of risk in the latterhaft of the nineteenth century, (16) just as automobile andproduct-caused accidents illuminated extended chains of responsibilityin the twentieth century, (17) climate change will challenge prevailingconceptions of wrongdoing in the twenty-first century. When even themost dystopian climate change scenario---such as the complete erasure ofterritorial homeland for distinct and long-lived human civilizations,(18) or the rendering of vast swaths of currently inhabited landunsuitable for human existence due to the threat of hyperthermia(19)--fails to register as a responsibility of any actor anywhere, ourprinciples of causal and moral attribution need to be rethought. As withearlier periods of societal evolution in response to suffering that isuncompensated, undeterred, and unrationalized, tort law will not beexempt from this necessity of reevaluation. Put bluntly, tort law willbe forced to adapt or perish, much like life itself in a warming world.

Part II of this Article provides an overview of challenges facingclimate change plaintiffs under prevailing tort doctrines. It begins bynoting the odd alignment of legal economists and plaintiffs'lawyers as two groups that both have attempted to squeeze the climatechange problem into existing paradigms for understanding and resolvingpollution disputes. It then challenges their efforts by detailing avariety of ways in which the problem of climate change causes existingparadigms to buckle and shake. After concluding that climate change tortsuits are unlikely to prevail on the merits, Part III turns the lensaround to ask what climate change litigation might nonetheless do fortort law itself. It argues that judges, having engaged up close with theextraordinary accumulation of minor, diffuse activities into a globalenvironmental problem of potentially biblical magnitude, may findthemselves willing to step farther outside of the classical liberal tortparadigm in non-climate change cases--yet another surprising anddramatic consequence of humanity's most dramatic experiment withthe natural world.

II. CLIMATE CHANGE AS THE ANTI-TORT

Given the connection between legal economic reasoning and tortreform initiatives over the past three decades, (20) economists andplaintiffs' lawyers make for unlikely bedfellows. Yet the twogroups do come together in their apparent belief that climate change isnot a paradigm-shifting phenomenon. To most environmental economists,the fact that anthropogenic greenhouse gas emissions are drivingatmospheric and oceanic changes of geologically unprecedented scale doesnot fundamentally alter their framework for evaluating environmentalpolicy issues. On the conventional economic account, greenhouse gasemissions are just another Pigouvian negative externality, (21) and theappropriate policy response is simply to "get the incentivesright" so that emitters undertake activities with a disciplinedawareness of external impacts. Such a policy response might take theform of an emissions tax, which ideally is set equal to the marginalenvironmental damage caused by a given level of emissions, (22) or acap-and-trade system, which ideally is designed to cap greenhouse gasemissions at the level that balances the benefits and costs of climatechange. (23)

The problem, however, is that economists have struggled to identifya value metric for measuring cost and benefits that is not parasitic onan implicit continuation of the status quo. For instance, the efficientresolution to a pollution dispute may appear quite different whenvictims are asked what they are willing to accept in exchange for beingharmed than when, as is more typical, they are asked what they arewilling (and able) to pay to avoid harm. Continued pollution appearsmore efficient in part because, as part of the valuation exercise,polluters are assumed to have a baseline right to continue pollutingwhich must be bribed away from them. Likewise, the social welfareanalysis of climate change and the identification of an optimal carbontax may change dramatically when future generations are first endowedwith rights over critical resources such as fossil fuels or, relatedly,the atmosphere's ability to withstand greenhouse gas emissions.Even putting aside these fundamental matters of justice, conventionalcost-benefit analyses of climate change still typically assume anempirically unrealistic potential for social, economic, andenvironmental systems to suffer damage without being critically,undermined,u Thus, the calculation of appropriate prices is undertakenin a manner that fails to directly examine the underlying systems thatgive rise to cost and benefit information; marginalist efficiencyanalysis is applied to a threat that may impair basic welfare-supportingsystems at their core, not merely at their margins. (25) Accordingly, animplicit rejection of transformative policies is built into the veryexercise that should be asking whether transformative policies arenecessary. As critics have noted, such an approach seems driven less bya full and genuine confrontation with the climate change conundrum thanby a disciplinary instinct to defend conventional methodologies in theface of that problem. (26)

Climate change plaintiffs and their lawyers also attempt to depictclimate change as a familiar externality problem. (27) Frustrated by alack of greenhouse gas legislation at the federal level, proponents ofclimate change governance have turned to other venues and strategies,including agency-forcing interpretations of existing federal statutes(28) and common law causes of action such as public nuisance. (29) Thus,litigants in Massachusetts v. U.S. Environmental Protection Agency(Massachusetts v. EPA) (30) depicted carbon dioxide (COs) as justanother Clean Air Act (31) regulated air pollutant. (32) More germane tothis Article, plaintiffs in climate change tort suits seek to treatgreenhouse gas emissions as just another common law nuisance, the likesof which courts have been adjudicating for centuries. (33) Theunderlying motive for this normalizing strategy is different from thatof economists--"any port in a storm," as the saying goes--butthe resulting conceptual strain is similar: trying to force climatechange into traditional common law categories calls into question basicfeatures of tort law itself. At each stage of the traditional tortanalysis---duty, breach, causation, and harm--the climate changeplaintiff finds herself bumping up against doctrines that are premisedon a classical liberal worldview in which threats such as global climatechange simply do not register. And just as environmental economists arefaced with a choice between reforming the underlying architecture oftheir discipline or failing to adequately characterize the climatechange problem, courts will be forced to either radically alter existingfeatures of tort law or deem nontortious activities that neverthelessthreaten core interests tort law claims to protect. In all likelihood,courts will follow economists in choosing the latter approach.

A. Duty/Proximate Cause

Consider first the related problems of establishing duty andproximate causation. Courts and commentators frequently speak of theformer in terms that seem expansive enough to encompass, at least as aninitial matter, activities that contribute substantially toanthropogenic climate change:

 [i]t is well settled that every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons. (34)

On this account, the primary focus of the duty analysis is simplywhether and when scientific evidence of the harmful effects ofanthroprogenic greenhouse gas emissions developed to the point that aduty arose to guard against those effects through ordinary care, however"remote and unknown" the ultimate victims might be.

Writers who have evaluated that question typically conclude that aduty attached around the time of the signing and entering into force ofthe United Nations Framework Convention on Climate Change (UNFCCC). (35)Eventually adopted by 193 nations, (36) the UNFCCC states unequivocallythat "human activities have been substantially increasing theatmospheric concentrations of greenhouse gases (GHG), that theseincreases enhance the natural greenhouse effect, and that this willresult on average in an additional warming of the Earth's surfaceand atmosphere and may adversely affect natural ecosystems andhumanldnd." (37) The agreement further identifies its"ultimate objective" as the "stabilization of greenhousegas concentrations in the atmosphere at a level that would preventdangerous anthropogenic interference with the climate system." (38)Thus, taking the UNFCCC as a reliable indicator of when harmfulconsequences of greenhouse gas emissions became "reasonablyprobable and foreseeable," it might seem that a duty of ordinarycare to avoid climate-induced harms arose sometime around 1992. (39)

Fleshing out the contours of such a duty can appear surprisinglysimple. Scientists believe that the planet can tolerate a certain levelof annual greenhouse gas emissions without entertaining risks of drasticdisruption to life-supporting systems. (40) Oceans, forests, and otherparts of the carbon cycle constitute something of a natural buffer,absorbing anthropogenic GHGs and potentially containing atmosphericwarming below levels that would risk critical breakdowns inenvironmental and social systems (often taken to be1.5[degrees]-2[degrees]C above pre-industrial temperatures). (41) TheGerman Advisory Council on Global Change has utilized this "guardrail" approach to estimate the total amount of greenhouse gasesthat can be emitted by humans between now and 2050 while still ensuringa sixty-seven percent chance of limiting the global mean temperatureincrease to 2[degrees]C. (42) Divided equally among the world'speople, this amount allows for an annual budget of roughly 2.7 tons ofC[O.sub.2] equivalent emissions per capita through 2050, falling to oneton per capita in steady state thereafter. (43) The duty of reasonablecare in respect of greenhouse gas emissions would thus be fixedaccording to these guidelines and anyone emitting above their annualequitable allocation would be considered in breach.

To put the guidelines in perspective, consider the followingactivities, each of which in the United States would consumeapproximately one ton from an individual's annual emissions budget:driving a standard passenger vehicle for ten weeks," consuminghousehold energy in an average single family home for four weeks, (45)or flying roundtrip from New York City to San Francisco. (46) Obviously,then, much of the world's population is currently in violation ofthe duty of ordinary climate care, at least when that duty is definedaccording to our best scientific estimates of the aggregate globalemissions level that does not compromise basic atmospheric, ecological,and social stability. As Figure 1 details, (47) the potential class ofdefendants who currently emit above 2.7 tons of annual C[O.sub.2]equivalent emissions includes literally billions of individuals,concentrated mainly in North America, Europe, and Australia (48) butalso increasingly found in China and other rapidly industrializingnations. (49)

[FIGURE 1 OMITTED]

Of course, to put matters this way is to reveal that legal duty isnot now, nor has it ever been, so simple. Even before vexing issues ofbreach, causation, and harm arise, climate change plaintiffs facesignificant challenges establishing the existence of any tort obligationat all, given the sheer pervasiveness of activities with high associatedgreenhouse gas emissions. Within American torts jurisprudence, our bestsignposts in the duty wilderness remain the contrastingly brilliantopinions in Palsgraf v. Long Island Railroad Company. (50) For JudgeCardozo and the New York Court of Appeals majority, duty analysis isdetermined by classical liberal principles of responsibility. InCardozo's view, "[n]egligence is not actionable unless itinvolves the invasion of a legally protected interest, the violation ofa right"; accordingly, "negligence in the air.., will notdo." (51) This particularized inquiry into the connection betweenplaintiff and defendant requires the judge to identify what "theeye of ordinary vigilance" would have foreseen as the possibleresult of defendant's conduct. (52) On Cardozo's account,then, antisocial conduct only triggers a duty of tort responsibilitywhen its potential harmful effects can be attached to particular,identifiable victims. Critically, those victims must rely on foreseeableinjurious pathways that are distinctive to them. It is not enough tocite the wrongfulness of defendant's behavior in relation toothers. The benefit of a tort duty is something one owns---or does notown--personally.

With respect to climate change, Cardozo's approach suggeststhat states, municipalities, tribes, and other aggregative entitiesmight be the most appropriate plaintiffs for a climate change suit,since the scope of the alleged victim would encompass a much larger, andtherefore arguably more foreseeable, swath of climate change'sadverse impacts. Public nuisance would then commend itself as thelogical cause of action to pursue, since it imports a duty to avoidinjurious conduct to rights that are held by the public in common. (53)Because harm would be conceived of as falling on the public'sshared interest in climate stability, the need to trace particular,individualized paths of foreseeability would be lessened, as would theapparent remoteness and attenuation of the link between defendant'sconduct and plaintiffs harm. In essence, Cardozo's classicalliberal world of interpersonal moral relations would be scaled up to alevel commensurate with the climate change problem. A variety ofdifficulties would remain--including the concern that public nuisancehas become an illicit end-run around the political process in the handsof zealous governmental plaintiffs (54)--but the basic structure oflegal duty would be at least arguably fulfilled.

In contrast to the particularistic focus of Cardozo'sapproach, the Palsgraf dissent by Judge Andrews offers a communal notionof responsibility in which all actors are under a duty to avoidunreasonable behavior, irrespective of whether that behavior implies aparticular relation of responsibility to plaintiffs or, indeed, ofwhether it actually causes harm. If the employees of the Long IslandRailroad Company negligently assisted passengers onto a crowded train,as they were alleged to have done in Palsgraf, then they committed"a wrong not only to those who happen to be within the radius ofdanger, but to all who might have been there---a wrong to the public atlarge." (55) In contrast to Cardozo, "negligence in theair" would seem to be quite cognizable on Andrews's approach,at least to the extent of establishing duty: "Due care is a dutyimposed on each one of us to protect society from unnecessary danger,not to protect A, B or C alone." (56) While Andrews subsequentlylimits this expansive conception of tort responsibility throughapplication of various proximate cause considerations (includingCardozo's touchstone of foreseeability), at least initiallyAndrews's view seems to be that duty is breathtakingly vast. (57)Indeed, under his conception, the basic individual duty to avoidexcessive greenhouse gas emissions sketched out above might well beadopted by a court.

Volumes have been written about these two opinions and volumes moreno doubt will follow. For present purposes, the most importantimplication of the debate between Cardozo and Andrews has to do withlegal process. Both jurists believe that liability---even for wrongfulconduct--must be curtailed in order for individuals to enjoy thefreedoms of liberal society. (58) To put the point in contemporaryterms, no one wants to see Grandma held responsible for climate changeharms because she drove to church on Sunday when she could have walked,even if her weekly devotion puts her above an annual emissionS budget.Where the two judges differ is in their conception of how such acurtailment of liability generally occurs. For Cardozo, a judge protectsGrandma by holding as matter of law that no duty attended her choice toutilize a carbon-intensive mode of transport, given the seemingunforseeability of any particular victimization from her contribution toclimate change. For Andrews, Grandma would find her relief through ajury's determination that the connection between her actions andany climate change harm is too remote or speculative to constituteproximate causation. Importantly, not only are the relevantdecisionmaker and doctrinal apparatus different on these two approaches,but also the decisional attitude. For Cardozo, the judge applies ratherabstract and formalistic notions of reasonable foreseeability,reflecting, perhaps, Cardozo's ambivalent relationship toward legalrealism. (59) For Andrews, on the other hand, the jury's .analysisis unabashedly one of "practical politics," "commonsense," "convenience," and "expediency." (80)

Controversy over the precise scope and significance of duty ragesto this day, inflamed recently by the American Law Institute(ALI)'s Restatement (Third) of Torts project. (61) With respect toliability for physical and emotional harm, the ALI Reporters laid out ageneral duty to avoid all behavior that creates a risk of harm toothers' interests, seemingly without regard to Cardozo'srelational niceties. (62) Of course, a variety of other doctrinalhurdles remain for plaintiffs to clear, but supporters of the ThirdRestatement approach see great advantage in keeping those hurdlesseparate from the more basic question of whether a duty of care existsin the first place. (63) The Reporters do acknowledge that duty may belimited by courts in exceptional cases for reasons of public policy.(64) A good example would be the much-discussed case of Strauss v..Belle Realty Co., (65) in which the New York Court of Appeals shieldedConsolidated Edison from liability to a plaintiff who was injured from astairway fall during the 1977 electricity blackout in New York City.Despite the acknowledged gross negligence of Consolidated Edison,despite the ready foreseeability of plaintiff and his injury in relationto such conduct, and despite the fact that Consolidated Edison'scontract with plaintiffs landlord clearly was intended to benefitplaintiff and other tenants, the court nevertheless fixed upon thecontract nexus as a convenient way "to contain liability tomanageable levels." (66) Notwithstanding the inevitablearbitrariness of such a line-drawing exercise, the court felt obliged toavoid the "crushing exposure to liability" that mightotherwise result "in the case of a blackout of a metropolis ofseveral million residents and visitors, each in some manner necessarilyaffected by a 25hour power failure." (67)

To critics, this expansive duty coupled with public policyexceptions invites judges to abrogate their traditional role as definersand elucidators of legal responsibilities, while still allowing for adhoc "get-out-of-duty-free" cards such as those dispensed inStrauss. Critics point fondly to earlier eras in Anglo-American tortlaw, when liability hinged on a series of elaborately articulated statusrelationships, such as those between an innkeeper and a guest, alandowner and an invitee, or an employer and an employee. (68)Influential cases such as Rowland v. Christian, (69) which set aside theintricate doctrinal structure governing duties owed by landowners infavor of loose case-by-case analysis, threaten to undermine socialordering by absolving judges of the responsibility to state in plain andprincipled terms what the legal duties of private parties are. In theview of critics, this gradual unhinging of duty from status seems tohave been related to the increasing importance of instrumentalistreasoning in tort law. (70) Through a realist lens, such as law andeconomics, once the standard of care is defined to be simply that whichmaximizes social welfare, then it seems obvious

that the duty to undertake care should be applied as widely aspossible. Better, in the view of critics, for judges to keep their earsclose to the ground, defining duty in terms of the actual norms ofrespect and obligation that prevail in liberal society. Listening inthat way, the critics suggest, judges would rarely hear such terms asoptimal deterrence (or crushing liability, for that matter). (71)

Defenders of the Third Restatement approach point out that thehistory of duty in Anglo-American tort law is more complicated than thecritics' account suggests. To begin with, tort law for centurieshas been driven by a mixture of considerations, including instrumentalgoals, corrective justice principles, and communal nornls. (72)Moreover, much of the duty-based doctrinal structure that criticsidentify in earlier eras of tort law constituted a series ofstatus-based immunities from tort responsibility (e.g., for sovereigns,charities, spouses, and employers). (73) The practical impact of thesevarious immunities should not be understated, as they worked to imposebarriers to liability in virtually every important category of socialinteraction that a nineteenth century plaintiff might experience. (74)Accordingly, as Robert Rabin has persuasively shown, the centralstruggle of American tort law over much of its history has not beenwhether strict liability or negligence should govern unintentionalharms, as commentators often assume, but rather whether defendants whocause unintentional harm owe any duty of care at all. (75) Against thisbackdrop, the Third Restatement's approach to duty seems not torepresent an abrogation of the judicial obligation to articulatecommunal norms of respect and care, but rather an acknowledgement thatthose norms expanded significantly over the course of the last century.

Still, it would be hasty to assume that our norms of respect andcare have expanded adequately to support common law responsibility forthe emission of greenhouse gases. The enduring resonance of Palsgraf hasmuch to do with the fact that both of its contrasting approaches remainalive and at work within tort jurisprudence, to the great frustration oflaw students and scholars who seek doctrinal uniformity. Yet forpurposes of limning greenhouse gas tort responsibilities, it may notmatter whether plaintiffs' claims hit a roadblock at the duty staged la Cardozo, or only later at the proximate causation stage a laAndrews, given that the analytical challenges facing plaintiffs will besimilar in either case. (76) Nor will it necessarily matter whetherplaintiffs' case is styled as a negligence, strict liability,private nuisance, public nuisance, or products liability action, giventhe availability of proximate causation and other liability-curtailingdevices under each theory. Most critically, plaintiffs will face thechallenge of establishing foreseeability in a way that does not strainliberal notions of limited obligation beyond the breaking point. Unlikemore familiar forms of pollution, greenhouse gases do not directly andlocally impair human health and ecosystems. Instead, they begin aslargely harmless emissions before globally dispersing throughout theatmosphere, warming the planet's surface, and ultimately triggeringa laundry list of complex and potentially harmful ripple effectsthroughout all natural systems. (77) On the one hand, this may be takento mean that "[t]he foreseeable zone of impact in the context ofclimate change, a global tort, is global, and the duty owed by defendantcontributors to climate change arguably extends to damaged plaintiffseverywhere." (78) On the other hand, it may mean that courts willview the climate change conundrum as simply falling beyond the grasp oftort law.

Similarly, the class of climate change defendants includes in theextreme anyone whose activities result in net greenhouse gas emissions,which is to say nearly every natural and legal person on the planet.(79) As such, climate change is so radically diffuse in origin that itis difficult to identify any actors who stand out as peculiarlyresponsible for it. Plaintiffs are forced to look for apparent chokepoints in the anthropogenic carbon cycle, such as fossil fuel companies,electric utilities, motor vehicle manufacturers, and other entities thatplausibly can be described as "responsible" for large volumesof emissions or that potentially can effectuate large-scale changes ingreenhouse gas emitting activities. For good measure, plaintiffs throwin fraud and conspiracy counts that allow them to offer evidence of howthese entities have distorted science and manipulated public debate onclimate change for the better part of three decades. (80) Figure 2presents a sector--based view of U.S. greenhouse gas emissions thatseems to support plaintiffs' strategy, identifying industry,transportation, and electric utilities as responsible for thelion's share of U.S. emissions. (81)

As Figure 3's systems-based view of emissions shows, (82)however, there is a problematic arbitrariness in plaintiffs'designation of the defendant class: why are automakers and power plantssued rather than their customers? (83) If most courts are unwilling toview handgun manufacturers as proximate contributors to the publicnuisance of violent crime, (84) how many will see the oil industry andother corporate defendants as chiefly responsible for activities that,in truth, are imbricated throughout modern society and that only causeharmful impacts when combined with all other such activities and whentraced forward through an extraordinarily complex series of rippleeffects that span the planet? How many instead will use longstandingduty and proximate cause principles to avoid jumping down that rabbithole of responsibility?

Problems of remoteness and attenuation do not just describe climatechange as a policy challenge, they define it. Between the moment ofemission and the ultimate incidence of harm lie innumerable links in acausal chain, many of which consist of actors with their own agency andarguable culpability. Thus, however articulated as a doctrinal matter,liability-constraining considerations are likely to bite hard againstthe climate change plaintiff.

B. Breach

Assuming, pace the prior discussion, that there is a common lawtort duty with respect to greenhouse gas emissions, what is its content?The per capita emissions allowance framework described above is oneapproach, but it is unappealing to plaintiffs for several reasons: it istoo obviously legislative or regulatory in nature; it applies toindividual defendants (85) when corporations and other large entitiesare the more attractive targets; and it invites consideration ofplaintiffs' own greenhouse gas emissions through contributorynegligence, unclean hands, and related doctrines. Instead, plaintiffsmust advance theories of liability that single out choices andactivities of large-scale defendants, characterizing those actors asespecially significant nodes in the otherwise continuous web ofrelations that give rise to greenhouse gas emissions. Additionally,plaintiffs must seek a standard of liability that eschewsinstrumentalist balancing in favor of a simple focus on the severity ofthe victim's harm. (86) If balancing prevails--whether in the formof conventional negligence analysis or modern versions of trespass andnuisance doctrine---plaintiffs will face the difficult prospect ofdemonstrating that the defendant's activities fail a social welfarecost-benefit test. (87) Rather than assume the need for a safe minimumstandard of atmospheric stability according to scientific criteria--theanalytical foundation of the per capita emissions budgetapproach-plaintiffs under a cost-benefit regime will need to persuadecourts that greenhouse gas intensive activities pose risks that outweighbenefits, despite the fact that those same activities lie at thefoundation of industrial society.

Given the stakes involved in such a judgment, courts may well takecues from the political branches in determining what the "socialvalue" of the defendant's activities are. (88) In thatrespect, Congress's longstanding tolerance--indeed activesupport--of activities with substantial greenhouse gas emissions seemsespecially problematic for plaintiffs. (89) Although scatteredexpressions of climate change concern from Congress can be identified,as the United States Court of Appeals for the Second Circuit noted inConnecticut v. American Electric Power Company, (90) "Congress hasnet acted to regulate greenhouse gas emissions in any real way."(91) Indeed, the most consistent stance of the body over time has beento promote exploration, production, and utilization of fossil fuelsthrough subsidies, tax incentives, and other mechanisms. (92) Continuedunwillingness to adopt a comprehensive climate change and energy reformpackage forty years after the problem was first brought to congressionalattention only underscores the discomfort common law judges might feelin allowing juries to declare greenhouse gas-intensive activitiesunreasonable. (93) This is especially the case in light ofCongress's failure to act in the face of intensive globalcampaigning on behalf of climate action during the lead-up to Copenhagenin 2009. Although merely an instance of the proverbial dog not barking,to the climate change policy community Congress's silence wasdeafening. (94)

Even judges who undertake an independent assessment of climatechange costs and benefits will find ample evidence tending to insulatedefendants from liability. With some notable exceptions, economicanalyses of climate change policy recommend only a gradual reduction ingreenhouse gas emissions in the near term, followed by steeper cutslater in the century. (95) Thus, when looking comprehensively at thesocial costs and benefits of fossil fuel production or other greenhousegas-intensive activities, courts may well conclude that the activitiesare not undesirable overall, at least not yet. Efforts by economists tocalculate the "social cost of carbon" similarly tend to draw afavorable comparison of fossil fuel energy sources to lower-emittingalternatives, (96) despite the extensive negative externalities of theformer. (97) For instance, an interagency working group of the ObamaAdministration recently compiled the first official U.S. governmentestimate of the human health, environmental, and other external costscaused by each ton of C[O.sub.2] equivalent emissions. The working groupcame up with a central estimate of $21 per metric ton of C[O.sub.2] in2010 and $45 per metric ton in 2050. (98) Although these estimatesdepend on numerous controversial assumptions, (99) the results of theworking group undoubtedly will appear attractive to any common law judgerequiring authoritative sources of information for cost-benefit analysisin the context of climate change.

Consider the implications of the working group's estimate forConnecticut v. American Electric Power Company. In this suit, variousstates and non-profit land trusts seek abatement of the "publicnuisance" of "global warming," which they believe issubstantially exacerbated by the actions of the defendant power plants,"the five largest emitters of [C[O.sub.2]] in the UnitedStates" responsible for "approximately one quarter of the U.S.electric power sector's [C[O.sub.2]] emissions." (100) Puttingaside for the moment problems of causal attribution--after all, thenamed defendants in the case appear to represent only 2.5% of worldwideannual C[O.sub.2] emissions which is, after all, only one of thesignificant contributors to greenhouse gas concentrations(101)--plaintiffs still must demonstrate that the defendants'activities are unreasonable. An analysis of comparative electricityproduction costs by the Congressional Budget Office (CBO) suggests thatthis showing will be difficult to make. (102) To begin with, the CBO didnot even consider intermittent renewable energy sources such as wind andsolar power or geographically limited sources such as hydroelectric orgeothermal. In the CBO's view, neither category could satisfybase-load generation needs in most parts of the country. (103) Courtsmight similarly conclude that the relevant comparison group for tortscrutiny only includes base-load capacity sources such as nuclear andnatural gas plants or coal-fired plants that have adopted carbon captureand sequestration (CCS) technology. (104)

According to the CBO, the production cost advantages of coal-firedelectricity are substantial: "Despite the high carbon intensity ofconventional coal technology, continuing to operate existing coal-firedplants would remain a relatively inexpensive source of electricity until[C[O.sub.2]] charges reached about $45 per metric ton." (105) Thus,putting together the CBO's estimate of comparative production costswith the interagency working group's estimate of the social benefitof reducing carbon emissions, it would appear that conventionalcoal-fired plants may hot begin to fall a cost-benefit test until 2050.Granted, with respect to any new power plants being built, a strongargument can be made that coal-fired plants without CCS technology areunreasonable in light of the general availability of natural gas as afuel source. (106) But plaintiffs in Connecticut v. American ElectricPower Company are challenging existing facilities and the economicanalysis in that regard is even worse from plaintiffs' perspective,given the great cost of CCS technology and the uncertainty regarding itsviability as a commercial-scale retrofit option for existing plants.(107) Thus, whether viewed from the macro-balancing perspective ofnuisance or the micro-balancing perspective of negligence, climatechange defendants will have substantial evidence to draw from inrebutting the charge of unreasonableness.

Might these apparently authoritative impressions be counteracted ifthe climate change plaintiff is itself another governmental entity? Asnoted above, (108) public nuisance is an attractive theory of liabilityfor plaintiffs given that it focuses on harms to the public interest,helping to close some of the remoteness and attenuation that otherwiseaccompanies claims of climate change in jury. Unlike the privatenuisance claim, which focuses paradigmatically on unique and limitedharms imposed by one landowner on an adjacent or nearby landowner, thepublic nuisance claim challenges any "unreasonable interferencewith a right common to the general public." (109) Traditionally,public nuisances have included a variety of harmful activities that seemsomewhat analogous to the problem of greenhouse gas emissions, at leastif one ignores vast differences in scale and complexity. (110) In termsof formal doctrinal language, the public nuisance category also seemsquite naturally to reach greenhouse gas emissions. The SecondRestatement provides that an unreasonable interference occurs wheneverthe defendant's "conduct involves a significant interferencewith the public health, the public safety, the public peace, the publiccomfort or the public convenience," (111) or when "the conductis of a continuing nature or has produced a permanent or long-lastingeffect, and, as the actor knows or has reason to know, has a significanteffect upon the public right." (112)

In addition to addressing harms common to the public, an advantageof the Second Restatement formulation for plaintiffs is that it seems tofocus on the severity of the alleged harm, rather than on a welfaristassessment of whether the defendant's activity is sociallydesirable on net. This stricter formulation used to appear even in theprivate nuisance context, especially among jurists influenced by astrong classical liberal vision of the sanctity of property rights.(113) To the extent that it retains vitality today, the formulation ismost likely to prevail in public nuisance cases, strongly counseling infavor of that cause of action for plaintiffs. (114) On the other hand,the traditional form of relief in public nuisance suits brought bygovernmental actors is equitable rather than compensatory. (115) Thus,the combination of a potent standard of liability with a presumptiveentitlement to injunctive relief would put judges in a difficultposition, as they are understandably reluctant to shut down activitiesof central economic importance. Many commentators questioned thelitigation strategy of plaintiffs in Connecticut v. American ElectricPower Company because their prayer for structured injunctive relief,gradually abating defendants' greenhouse gas emissions, seemed toinvite the court to dismiss the case on political question grounds.(116) To the surprise of many observers, a Second Circuit panel ruledthat the political question doctrine does not pose a barrier toadjudication. (117) Nevertheless, the district court might still be ableto avoid the wide-ranging implications of plaintiffs' suit byadopting a balancing standard of liability rather than a stricter, moreharm-focused standard. On the balancing approach, a predicate finding ofbreach will be more elusive and the third rail of injunctive reliefmight still be avoided.

The essential point is that courts in environmental tort casesoften seem driven by the type of relief looming at the end of a courseof analysis. (118) For instance, those courts that maintain a strictconception of trespass liability, in which an injunction is thepresumptive form of relief, are less likely to conceive of pollution asa physical invasion despite acknowledging that particulate matter is,well, matter. (119) Conversely, those courts that either count pollutionas a physical invasion or adopt a strict conception of nuisanceliability are less likely to hold onto the presumption that injunctiverelief is awarded to successful plaintiffs. (120) To thread the needle,then, plaintiffs in climate change suits may need to both persuade thecourt to eschew balancing in favor of a strict form of protection andlimit their prayer for relief to damages only. This may mean thatgovernmental plaintiffs and private plaintiffs suing under a publicnuisance theory should not join forces, given that the former aresomewhat restricted in their ability to seek damages. (121) On the otherhand, states suing in their proprietary capacity as landowners typicallyare hot restricted from pursuing damages, (122) and the states'proprietary holdings may be vast enough to achieve much of the goal ofclimate change litigation. (123) Alternatively, governmental plaintiffsmay seek to style their prayer for relief as equitable in nature, eventhough it simply amounts to a request for monetary funds to reimbursepublic entities for climate change adaptation and compensation expenses.(124) Either way, the goal of the litigation will be to persuade a courtto adopt the strict conception of public nuisance liability withoutraising the prospect of a politically radioactive and judiciallyunwieldy injunction.

To date, the best attempt to pass through this narrow needle isNative Village of Kivalina v. ExxonMobil Corp (Kivalina). (125) In thissuit, the city of Kivalina, Alaska and 'the governing body ofapproximately 400 Inupiat Eskimo residents challenge twenty-four off,energy, and utility companies, seeking monetary compensation forexpenses associated with relocating the town. (126) Both the U.S. ArmyCorps of Engineers and the U.S. Government Accountability Officedetermined that Kivalina must be relocated imminently on account ofincreased erosion risk from permafrost melting, sea ice decline, andother manifestations of climate change. (127) Of all the climate changetort cases, this suit seems to be the best pled. The Village of Kivalinanot only represents a governmental plaintiff, but an extremelysympathetic one whose constituents are among the most vulnerable peoplein the world to climate change while also being among the leastresponsible for it. (128) Moreover, as discussed below, the primaryalleged harm in Kivalina--infrastructural damage resulting from enhancedstorm exposure due to decreased Arctic sea ice (129)--is more amenableto causal attribution than many other impacts of climate change. Perhapsmost critically, plaintiffs in Kivalina only seek monetary recovery andthe extent of their claim is cabined by pre-existing official estimatesof their relocation costs. (130) Finally, although the amount sought indamages is not trivial--the federal government estimates it will costbetween $95 and $400 million to move the village (131)--the chosendefendants in Kivalina include some of the most profitable corporationsin the world. (132)

Notwithstanding these strengths, the federal district courtdismissed the Kivalina complaint on justiciability grounds. (133)Critical to the court's conclusion was a belief thatplaintiffs' theory of the case would require the : court to"balance the utility and benefit of the alleged nuisance againstthe harm caused," an analysis that appeared to draw the courtinexorably into political juggling of "inter alia, theenergy-producing alternatives that were available in the past and..,their respective impact on far ranging issues such as their reliabilityas an energy source, safety considerations and the impact of thedifferent alternatives on consumers and business at every level."(134) Plaintiffs' theory of the case, however, is built on adifferent conception of nuisance liability. Plaintiffs are not askingfor judicial "determination of what would have been an acceptablelimit on the level of greenhouse gases emitted by [d]efendants,"(135) as the court put it. Instead, they are asking for revitalizationof an earlier conception of nuisance liability that focuses only on theseverity of plaintiffs' harm. In essence, they are asking the courtto reinscribe a classical liberal conception of property rights in whichthe interest of landowners in the use and enjoyment of property isprotected with stronger sauce than modern welfarist balancing. (136)After all, if one accepts the normative argument that property isintended to create a private sphere of sovereignty within whichindividuals and groups can find shelter from majoritarian incursion andoppression, then the Alaska Natives of Kivalina deserve suchsovereignty, if any landowner does. (137)

The Kivalina plaintiffs may have another chance to press theirargument dismissal if the Supreme Court in its review of Connecticut v.American Electric Power does not prevent federal common law adjudicationaltogether. Nevertheless, even if they clear jurisdictional andjusticiability hurdles, the Kivalina plaintiffs still will need topersuade the court to adopt a strict conception of nuisance liability.And even if they clear that hurdle, they will only find themselves inyet another pickle: having advanced a classical liberal conception ofstrong property rights protection in order to establish duty and breach,they will then need to quickly shift to an instrumentalist framework inorder to deal with problems of causation. As the next Part explains, itis precisely tort law's classical liberal foundation that limitsthe ability of courts to trace climate change harms to defendants'activities according to orthodox causation principles. Thus, forplaintiffs to succeed, the same judge who views nuisance law as a strictbulwark in defense of property rights must then adopt an optimaldeterrence lens to see the wisdom of unusual probabilistic causationdoctrines. Tort is always pluralist in its goals and conceptions, butthis amount of internal dissonance is probably too much for a singlecase to bear.

C. Causation

The most significant challenge for climate change tort suits liesin proving causation. (138) To be sure, the president of the NationalAcademy of Sciences testified in 2006 before the U.S. House ofRepresentatives that "we understand the mechanisms of C[O.sub.2]and climate better than we do of what causes lung cancer.... In fact, itis fair to say that global warming may be the most carefully and fullystudied scientific topic in human history." (139) Nevertheless,defendants might take a cue from the tobacco playbook, finding itcost-effective to contest even rudimentary aspects of climate changescience, just as tobacco defendants successfully deterred and prolongedlawsuits by fiercely challenging basic medical facts regardingcarcinogenicity and addictiveness. (140) In the administrative lawrealm, the U.S. Chamber of Commerce and others have filed suit againstthe Environmental Protection Agency (EPA) for its greenhouse gasendangerment finding under the Clean Air Act. (141) Bolstered byscientifically marginal but nonetheless damaging revelations of error inthe Fourth Assessment Report of the Intergovernmental Panel on ClimateChange (IPCC), these litigants promise a "Scopes Monkey Trial ofthe 21st century." (42) Both the EPA and courts have relied heavilyon IPCC assessments in evaluating the links between greenhouse gasemissions, global warming, and adverse impacts. (143) Thus, theIPCC's public relations disaster could well be viewed as alitigation opportunity by climate change defendants.

Assuming that the basic anthropogenic greenhouse effect is netcontested, plaintiffs still face a variety of conceptual and empiricaldifficulties in their attempts to connect any individual climate-relatedharm to particular defendants' emissions. The most blunt barrier isposed by tort law's traditional requirement of but-for causation:"Under orthodox common law rules concerning causation, a tortfeasoris liable for an indivisible injury that would net have happened absentthat party's breach." (144) Even though this mechanisticvision of causation has long since been abandoned by scientists in favorof a probabilistic one, courts continue to cling to the but-forrequirement in order to implement the classical liberal vision of tortas a system of rules prescribing right conduct within interpersonalrelations. (145) Singling out defendant's behavior as a necessarycause of plaintiff's harm is seen as prerequisite to the invocationof judicial authority to reallocate losses from where they otherwisefall within private ordering. Put more affirmatively, if tort law's"main idea is about permitting people an avenue of civil recoursethrough which to redress the wrongful injurings done to them,"(146) then that same idea is likely to affect how courts assess thecausal relationship between the doer and the done. When a plaintiffsproof bears the form of a text on quantum physics rather than a moralityplay, the case will seem to involve the kind of risk prevention andinsurance endeavors that are characteristic of the administrative state,rather than the common law. (147)

Climate change science presents numerous problems for plaintiffs inthis regard. First, most climate-related harms--such as those resultingfrom hurricanes, heat waves, droughts, seasonal allergies, pestinvasions, or disease infections--already have a nontrivial backgroundrate of occurrence, separate and apart from anthropogenic globalwarming. (148) Thus, under orthodox causation rules, plaintiffs willneed to demonstrate that the human warming factor more than doubled therisk that their particular harm would have occurred. (149) Anythingless, and plaintiffs will have failed to show that their harm morelikely than not resulted from anthropogenic greenhouse gas emissions.(150) This barrier might seem to be insurmountable, but it is not. Someclimate change impacts, for instance, are akin to what is known as a"signature disease" in toxic tort parlance, in that theimpacts simply would not have occurred absent anthropogenic climatechange. (151) The harm alleged in Kivalina may well fit thischaracterization. In a world without human-induced warming--that is, inthe counterfactual world required by the orthodox causationtest--plaintiffs in Kivalina could have continued to inhabit theirvillage without substantial fear of sea level rise, storm surge,permafrost erosion, or other climate-related threats to habitability forhundreds of years.

The problem of cryosphere (152) melting that lies behindKivalina's woes will give rise to other signature impacts ofclimate change. In its Fourth Assessment Report on Climate Change, theIPCC focused considerable attention on the role of temperature change asa direct driver of climate change impacts, given that "physical andbiological responses to changing temperatures are often betterunderstood than responses to other climate parameters, and theanthropogenic signal is easier to detect for temperature than for otherparameters." (153) Furthermore, the evidence for shrinking of thecryosphere---including melting of glaciers, snow, sea ice, andpermafrost--is strong and the "effects in the environment and inhuman activities are already detectable." (154) Among such effectsare glacier retreat, glacial lake flooding and outburst, and reducedsnowpack at low altitudes, (155) with adverse implications for municipalwater suppliers, ski resorts, tourism companies, snow runway operators,and other potential climate change plaintiffs. Ironically, even offcompanies might claim to have suffered a signature climate change impactgiven the reduced number of exploration days available in the Arctic dueto thawing of ice roads. (156)

Even for non-signature impacts, climate modeling in some cases canenable relatively fine parsing of natural and human contributions to therisk of adverse events. A study published in the journal Nature, forinstance, estimated that the 2003 European heat wave, which resulted inthe premature death of approximately 22,000 to 35,000 people, was atleast two times more likely to have occurred as a result of the humancontribution to global warming. (157) Likewise, some experts now believethat the collapse of lobster fisheries south of Cape Cod is directlyattributable to warmer ocean temperatures from climate change, as otherexplanations have been tested and excluded. (158) Thus, with respect tothese events, credible scientific evidence exists to support a findingof causation, even under the restrictive more-likely-than-notformulation. Fortuitously for plaintiffs, the National Oceanic andAtmospheric Administration has formed a "Climate SceneInvestigators" unit that is specifically tasked with evaluatingextreme climate and weather events for evidence of an anthropogenicclimate change fingerprint. (159)

Much will depend on the particular harm involved. Plaintiffs inComer v. Murphy Oil USA (Corner v. Murphy Oil), (160) for instance, havea much tougher row to hoe, given that their primary claims "rely onallegations of a causal link between greenhouse gas emissions, globalwarming, and the destruction of the plaintiffs' property by risingsea levels and the added ferocity of Hurricane Katrina." (161)Although studies predict a substantial future increase in the severityand damage potential of Atlantic hurricanes due to human-induced risesin sea temperature and sea level, retrospective analyses of the humancontribution to the risk of an event like Hurricane Katrina are muchmore equivocal. (162) Unfortunately for climate change plaintiffs, themajority of expected impacts are likely to present a complicated causalpicture similar to that of hurricanes. With respect to vector-bornediseases, allergies, and other health impacts, for instance, causalattribution is complicated by a lack of long-term data relating climateand health, and by the significant effects of wealth, demographics,technology, and other non-climate drivers. (163) Unless courts arewilling to adopt a significant risk test for causation--under whichplaintiffs could proceed merely if defendant's conduct was shown tohave created a significant risk of the harm occurring (164)--manyclimate change plaintiffs will simply fall to meet their actualcausation burden.

Again, the logic behind a governmental plaintiff and a publicnuisance cause of action becomes plain, as a state or a city might citethe entire time series of hurricanes, heat waves, or other adverseevents as falling under its purview and therefore amenable to judicialrelief. (166) From this perspective, recovery arguably would not need todepend on showing that any particular event more likely than notresulted from anthropogenic climate change. Instead, the governmentalplaintiff would cite the entire trend of adverse events and seekabatement or restitution on account of elevations in the trend. The harmalleged would thus fit the epistemological shape of climate science.Other high-profile uses of public nuisance litigation, however, suggestthat courts are unlikely to embrace this aggregative view. Governmentalplaintiffs in suits against the tobacco industry urged a statisticalcausation approach that did not require identification of particularvictims of smoking-related diseases, but instead only anepidemiologically identified elevation in disease among the relevantpopulation group. (166)

However, the reasoning of at least one state court suggests thatsuch an approach might violate the state's constitutional dueprocess clause, (167) and the theory more generally was not tested incourts prior to the Master Settlement Agreement that ended mostlitigation by states against the tobacco industry. Subsequent casesagainst the lead paint industry, handgun manufacturers, and subprimemortgage lenders have also revealed only faint appetite among courts forcreative use of the public nuisance cause of action. (168) Much Of thecriticism levied against these cases has been that governmentalplaintiffs appear to be pressing public nuisance theories as an end-runaround conventional causation requirements. (169)

A second causation challenge facing plaintiffs has to do with theextraordinary numerosity of greenhouse gas emitters. As noted above,this numerosity spells trouble for the establishment of duty. It alsohas profound implications for causation, as any individual defendant canquite plausibly offer the "consequentialist alibi" that itsemissions are simply too small of a share of global emissions to cause adiscernable difference. (170) It is only in combination with millions ofother emitters that the anthropogenic greenhouse effect becomes aradical and potentially devastating climactic experiment.Plaintiffs' dream scenario to overcome this multiple defendantproblem would be for courts to adopt the same presumption ofindivisibility that they do in the asbestos context, such that anysignificant contribution to anthropogenic greenhouse gas emissions wouldsubject a defendant to joint-and-several liability for the entirety ofplaintiffs harm. (171) Precedent in the pollution nuisance contextexists for such an approach. To begin with, it is clear thatcontribution to a pollution nuisance above a de minimis threshold cangive rise to damages liability or injunctive relief, notwithstanding thepresence of numerous other contributors. (172) Moreover, many courtshave held that, where apportionment among contributors is infeasible,plaintiffs may hold defendants jointly and severally liable or may shiftthe burden of proof onto defendants to disaggregate their respectivecontributions. (173) Perhaps it was this precedent that the SecondCircuit panel had in mind when, in Connecticut v. American ElectricPower Company, the panel offhandedly referred to rules governing "afederal common law of nuisance case[s] involving air pollution, wherethe ambient air contains pollution from multiple sources and whereliability is joint and several." (174) Although merely dicta tosupport the conclusion that redressability for standing purposes hadbeen adequately alleged, this statement nonetheless likely sent a chillthrough defendants' boardrooms.

The air warms slightly for defendants when one considers the readydivisibility of contributions to anthropogeuic climate change. Althoughgreenhouse gas emissions contribute to a single global phenomenon,well-understood metrics and methods are available to standardize thewarming potential of different gases and to quantify any particulardefendant's contributions. Thus, so long as the emissions levels ofa particular defendant can be measured, that defendant'scontribution to climate change harms also can be estimated. EPA'srecently adopted greenhouse gas reporting rule, which requires suppliersof fossil fuels or industrial greenhouse gases, manufacturers ofvehicles and engines, and facilities that emit 25,000 metric tons ormore per year of greenhouse gas emissions to submit annual reports ontheir emissions levels to EPA, surely eliminates any basis forplaintiffs to claim the infeasibility of disaggregating defendants'contributions to climate change going forward. (175) And althoughhistorical emissions data is much harder to estimate, plaintiffs stillhave means available to undertake such estimations through corporaterecords, tax filings, government lease documents, and other sources. Onestudy, for instance, concludes that as much as five per cent ofanthropogenic C[O.sub.2] emissions over the last 120 years can beattributed to a single oil company and its corporate predecessors. (176)

In short, because of the relatively diffuse and uniform effect ofgreenhouse gas emissions and because of the possibility of estimatingparticular defendants' emissions levels, plaintiffs do not need torely on joint and several liability, burden-shifting, or otherconcessionary causation doctrines. Nor do they need to resort to marketshare liability, as some commentators have suggested. (177) Under marketshare liability, courts apportion liability according todefendants' share of the relevant product market, rather than moredirectly on their share of causal responsibility for plaintiffs'harm. Courts have invoked market share liability in thediethylstilbestrol (DES) context in light of plaintiffs' inabilityto prove which defendant manufactured and marketed the particular dosesof DES that plaintiffs' mothers ingested and that led toteratogenic harm. (178) At least in theory, if all DES victims sued allDES manufacturers, and if all courts applied market share liability inthe same fashion, then eventually all manufacturers would pay damagesequal to their actual causal shares of responsibility. Some semblance ofclassical liberal tort responsibility would thus be preserved throughthe aggregate impact of the suits. Nonetheless, very few courts haveapplied the market share theory outside of the DES context, usually onthe ground that other products and activities do not have the feature ofgeneric fungibility that DES does. (179) Perhaps because greenhouse gasemissions do seem to have that elusive quality of fungibility,commentators advocate application of market share liability forclimate-related harms. (180) The climate change context, however, isfundamentally different: each emission contributes to a single globalprocess that causes all harms. In such a context, several liability isthe appropriate theory of recovery, rather than market share.

Of course, once causal contributions are disaggregated in this way,the problem of diluteness reappears. Tellingly, the Second Restatementoffers this caveat regarding the multiple causation context:"although no one of the contributing factors may have such apredominant effect, their combined effect may, as it were, se dilute theeffects of the actor's negligence as to prevent it from being asubstantial factor." (181) De the emissions of any individualdefendant constitute a "substantial factor" driving climatechange? to be sure, there is remarkable market concentration in thefossil fuel, automobile, and electricity sectors. (182) "In fact,50 companies are responsible for three-quarters of the emissions fromthe U.S. electric power sector. Of these, just 18 companies areresponsible for 50% of the emissions, and just 5 companies for25%." (183)

By carefully selecting a group of defendants from among thesehigh-emitting companies, plaintiffs are somewhat able to overcome thecausal diluteness impression. As one of the lead plaintiffs'lawyers observed with respect to the defendants in Connecticut v.American Electric Power Company, "[a] court order requiring thesefive companies to reduce their emissions would constitute one of thesingle greatest reductions in GHGs ever effected." (184)Nevertheless, it would still be a reduction that in slight in comparisonto the overall level of emissions. Notably, when the Supreme Court wasfaced with this feature of the climate change problem in Massachusettsv. EPA, the majority stressed that regulatory agencies are entitled to"whittle away" at a complex problem such as climate change bytargeting only selected contributors, rather than being required tobring all significant sources under a control regime in one fell swoop.(185)

But courts are net agencies and the common law of tort is designedto address discrete harms by discrete actors, rather than to"whittle away" at the margins of a comprehensive problem.Indeed, even if one assumed for a moment that national governments couldbe sued in tort for permitting greenhouse gas emitting activities withintheir jurisdictions--in order to construct a class of defendantsmanageable in size yet still emissions-encompassing in scope--theproblem of diluteness would remain. Historical responsibility forexisting greenhouse gas concentrations is difficult to calculate, butstudies suggest that at most around thirty percent of the current stockis attributable to any single nation. (186) Looking forward, relativenational contributions will become even more diffuse, as China, India,Brazil, and other major developing countries continue to expand theiremissions. (187) Thus, even in a fanciful world of full tort liabilityagainst national actors, the problem of causal diluteness still loomslarge over plaintiffs' claims. Perhaps, then, the reason thatcommentators turn to market share liability is that its logic seems toeliminate the need for any particular defendant to constitute a"substantial factor" in bringing about plaintiffs harm. Intheory, if plaintiff wishes to sue defendants representing only onepercent of the relevant market, then she receives only one percent ofher available recovery. Nothing within the logic of market shareliability seems to prevent this result, or its extension to thegreenhouse gas context.

There are at least two problems with this reasoning. First, even inthe DES context, courts have failed to accept the full implications ofthe market share logic, often requiring plaintiffs to assemble a groupof defendants representing a "substantial percentage" of thetotal market. (188) This requirement reflects the discomfort that judgeshave in stepping too far away from tort law's classical A-hits-Bframework. Second, as noted above, (189) the climate change contextposes distinct conceptual problems in terms of attribution, given theparticipation of so many actors in bringing about emissions other thannamed defendants. For instance, in its abandoned climate change nuisancesuit, the State of California alleged that defendant automakersrepresented nine percent of the world's C[O.sub.2] emissions. (190)Not only is this an uncomfortably small share of global emissions for acommon law court to stomach, but it also represents a debatabledepiction of responsibility for vehicle emissions. If automakers areonly held accountable for direct emissions from manufacturing, ratherthan also from vehicle use, then their small percentage of emissionsbecomes even smaller.

Plaintiffs no doubt can point to a wealth of evidence suggestingthat automakers deliberately steer customers toward high-emittingvehicles and resist legal and market efforts to advance alternative,lower-emitting technologies. (191) On the other hand, customers are notmere putty in the hands of automakers: they also bear a share ofresponsibility for purchasing inefficient vehicles and for driving themin inefficient ways. In that sense, the greenhouse gas emission contextis far more complicated than, say, the DES context, in whichplaintiffs' mothers simply had no idea they were posing adevelopmental risk to their infants, or the secondhand smoke context, inwhich victims plausibly seek to attribute the lion's share ofresponsibility to the tobacco industry for marketing an addictiveproduct and hiding its dangers from smokers and the public. (192) Beforeshares of greenhouse gas responsibility can be calculated, we mustsettle on an appropriate principle of attribution. Just as governmentsinternationally have not decided whether emissions associated withglobally traded goods should be attributed on a production orconsumption basis, (193) courts domestically have yet to establishexactly where in the anthropogenic carbon cycle culpability attaches.Critically, any attempt by plaintiffs to narrow the class of defendantswill be met by the defendants' demand that other major contributorsbe joined as third parties (who will themselves also seek to impleadother contributors). Quite simply, there is no way to avoid theextraordinary numerosity problem when it comes to greenhouse gasemissions. (194)

A final causal difficulty for climate change plaintiffs relates totemporality. Most greenhouse gases are stock pollutants, capable ofpersisting in the atmosphere and warming the planet for decades, evencenturies. (195) Thus, even if plaintiffs successfully disentangle theirharms from alternative causal explanations and successfully establishsome principle of causal apportionment among defendants, they still mustisolate precisely when a duty to avoid emissions attached and when theirparticular harm became reasonably foreseeable. Both of these analyseswill work to shorten the time period within which defendants'harmful emissions were culpably harmful. Both analyses will requireplaintiffs to develop scientific evidence that not only separatesanthropogenic climate change impacts from background drivers, but alsomodels a counterfactual world in which emissions occur at historic ratesright up until the moment climate responsibility attaches and then dropto whatever level is deemed to be reasonable. This exercise is necessaryto ensure that plaintiffs' harm resulted not merely fromdefendants' conduct, but from the negligent or otherwise tortiousaspect of defendants' conduct.

In the realm of products liability, courts have rarely--and usuallyonly briefly--applied a standard under which manufacturers areresponsible for product or warning defects irrespective of whether theywere reasonably or even scientifically knowable at the time ofmanufacture. (196) Generally attributed to Deans Page Keeton and JohnWade, this "constructive knowledge" approach has the effect ofmaking a negligence-based test for defectiveness into something morelike a strict liability test, in fight of the deemed irrelevance offoreseeability. (197) Jane Stapleton draws attention to an interestingcase from the United Kingdom which presented a similar problem outsideof the products liability context. (198) Plaintiffs had been exposed toexcessive occupational noise over extended periods of employment, all ofwhich contributed to hearing loss. (199) Plaintiffs were unable,however, to precisely identify the portion of their damage that occurredafter the point at which defendant employers became negligent by virtueof the reasonable foreseeability of harm. (200) Rather than adopt acrude all or nothing approach, the trial judge instead treated thematter as one of rough justice for the factfinder to assess. (201)Plaintiffs in the climate change context may need to avail themselves ofeither the "constructive knowledge" or the "roughjustice" approaches, in light of the difficulty they facedemonstrating what portion of the climate-related harm is attributableto culpable anthropogenic greenhouse gas emissions. Both doctrines are,however, unusual and controversial.

D. Harm

Even though the element of harm comes last in the hornbooks, (202)it comes first in the minds of plaintiffs' lawyers. For tort law,no harm generally means no foul. (203) A basic problem for plaintiffsand their lawyers in the climate change context is that the mostdevastating impacts of greenhouse gas emissions are not expected tobegin until later this century or afterward. (204) Thus, in manycontexts, climate change plaintiffs will want to seek recovery for apresent risk of future harm. The circ*mstances under which courts permitsuch recovery, however, are quite limited. Medical monitoring claims inthe context of toxic substance exposure present perhaps the bestanalogy. (205) Although courts have rejected the notion that"enhanced risk" of future injury is itself a compensable harm,they have been friendlier to claims based on the need for medicalsurveillance. (206) Plaintiffs might similarly contend thatanthropogenic greenhouse gas emissions have created a need foradaptation planning as a precautionary expenditure in advance of climatechange's worst impacts. (207) Individualized assessments of climatechange vulnerability and response needs are now being undertaken at alllevels of government and increasingly also by the private sector, oftenat the behest of their insurers. (208) Such expenses might becharacterized as the reasonable and foreseeable consequence of climatechange defendants' risk-enhancing activities, just as medicalmonitoring costs have been so characterized in the toxic exposurecontext.

Courts are unlikely to buy the analogy, however. To begin with,some courts have limited medical monitoring recovery to those risks"for which a medical test for early detection exists ... and whichtest has been prescribed by a qualified physician according tocontemporary scientific principles." (209) Despite the importanceand sincerity of their activities, the community of experts involved inclimate change adaptation planning do not yet have the level ofexperience and methodological refinement--not to mention epistemicauthority within litigation--that the medical profession does. (210)Second, some courts require plaintiffs to demonstrate that "as aproximate result of the exposure, plaintiff has a significantlyincreased risk of contracting a serious latent disease." (211) Sucha requirement seems to incorporate all of the causal attributiondifficulties described above, as plaintiffs can identify few if anyactors below the level of national governments that can plausibly bedescribed as significantly increasing the risk of anthropogenic climatechange. Third, some courts also require "plaintiffs to show notonly that their exposure to toxic substances is greater than normalbackground levels, but that the increased risk of injury from suchexposure warrants medical monitoring against future illness beyond thatwhich is recommended for everyone." (212) Much of climate changeadaptation planning will involve precautionary measures that may bedifficult to distinguish from ordinary good governance, (213) just assome toxic risk health screening is indistinguishable from goodpreventative medicine. Thus, a requirement similar to the "specialmedical monitoring" rule might preclude recovery in the climatechange context.

Fourth, several courts have rejected the medical monitoring theoryaltogether, often citing concern over increases in the number ofprospective tort plaintiffs and the possibility that limited defendantfunds will be diverted away from presently injured plaintiffs. (214)Just as medical monitoring awards could easily exhaust available fundsfor presently injured victims of toxic substance exposure, recovery ofanticipated climate change expenses by states could quickly bankruptwhichever industries are held responsible for adaptation planning costs.Finally, to the extent that governmental plaintiffs seek compensationfor anticipated rises in public health and safety expenditures ratherthan more directly for harm to their proprietary holdings, the economicloss rule might pose an independent barrier to recovery, just as it hasin public nuisance litigation against handgun manufacturers and subprimemortgage lenders. (215) In short, the "climate monitoring"approach to future injury faces a number of obstacles for plaintiffs.Instead, plaintiffs seem best advised to identify presently realizedinjuries and to connect them to the ongoing nuisance of climate change,hoping to obtain in the process the holy grail of injunctive relief toaddress

III. CLIMATE CHANGE AS TORT REFORM

Make no mistake: a conceivable set of arguments on behalf ofclimate change tort plaintiffs does exist. The problem, however, is thatthe winning scenario for most climate-related harms requires a court tostretch in plaintiffs' direction at nearly every stage of thetraditional tort analysis: duty would have to encompass "negligencein the air," rather than more particularized relations ofresponsibility; nuisance would have to be interpreted as an absoluteprotection against significant invasions, irrespective of social welfarebalancing; actual cause would have to embrace--at long last--aprobabilistic, risk-enhancement conception of causation; exceptionalmeasures of apportionment would have to be invoked to address a multipledefendant problem of unprecedented magnitude; proximate cause would haveto be interpreted such that the scope of foreseeable harm fromgreenhouse gas emissions both tracks projections from climate modelsthat stand at the very forefront of scientific inquiry and, in manycases, applies retroactively as a form of imputed knowledge tantamountto strict liability; and harm would have to be expanded to include muchmore by way of anticipatory injury than courts currently recognize.

Judges are unlikely to follow plaintiffs down this gauntlet.Nevertheless, the very attempt to run it may yield benefits for the tortsystem. As this Part argues, the effort to fit the mother of allcollective action problems into the traditional paradigm of tort revealsmuch about how that paradigm more generally needs to shift. In manyrespects, this shift will be a continuation of trends that began lastcentury, but were pulled up short before their logical completion.Broadly speaking, American law evolved during the twentieth century froman individualized expost reparative modality to a systemic ex anteplanning one. (217) Coinciding with the rise of statistical methods infields such as public health and business management, this modalityexerted obvious and important influences on administrative agencies. Tosome extent, tort law went along for the ride during thistransformation. (218) As the paradigmatic tort shifted from intentionalbattery to accidental injury, judges and academics began to think oftort law as more than simply a means for affording private redress tovictims of civil wrongs. First legal realists and then legal economistscame to conceive of tort law largely in instrumental terms, as a devicefor deterring socially undesirable conduct. (219) Attention moved from afocus on particular actions between particular parties (e.g., A hits B)to a focus on activities with more general and potentially harmfulimpacts (e.g., manufacturing automobiles, marketing pharmaceuticals, andshipping toxic chemicals). (220) Although courts never fully surrenderedto an instrumental view of tort law or a statistical conception ofinjury, the basic need to acknowledge these modes of analysis manifesteditself in numerous doctrinal changes. Indeed, by the end of thetwentieth century, the public law understanding of tort had become soinfluential that a neotraditionalist literature emerged with the aim ofrestoring the field's classical liberal framing. (221)

If neo-traditionalists are right that tort law has lost itsmooring, then climate change suits will only underscore their point.Alternatively, if judges and academics continue to view tort law atleast partially in instrumental terms--which they undoubtedly will(222)--then climate change suits may have the salutary effect offostering judicial recognition of just how complex and interrelatedsocial, economic, and environmental systems are. Judges may learn to seethe world through an ecological lens, just as they have come to see itat least partially through an economic one. Such a development should bewelcomed, for despite the intellectual and practical success of law andeconomics, the movement has not lived up to its ambition of providing acomprehensive framework for analyzing the social welfare effects of lawsand regulations. Most critically, economic evaluation of common lawrules and regulatory policies has tended to consist only of partialequilibrium analysis, in which major components of society'ssystems are held constant, save for whatever particular rule or policyis under inspection. (223) In part, this approach has been driven bymethodological constraints, as more dynamic and comprehensive generalequilibrium analyses are difficult and costly to undertake. In addition,however, the preference for partial equilibrium analysis has been tiedto the conservative view that laws and institutions function best whenthey have withstood the test of time and that, accordingly, societyshould resist radical or wholesale change. Practitioners of law andeconomics implement this view by evaluating policy proposals piecemeal,examining each for marginal social welfare improvements over a baselinecase of business as usual. The baseline case itself is rarely criticallyexamined.

This marginalist orientation has two important limitations in thecontext of contemporary environmental, health, and safety threats.First, the partial equilibrium framing tends as a practical matter tomiss important welfare consequences that would be more apparent from avantage point that assumes complex interrelations among systems. Forinstance, on the conventional economic account, liability for shippingtoxic chemicals by rail through residential neighborhoods is treated asa simple matter of weighing the direct health and cleanup costs of aspill against the expense of preventing it. (224) From a more dynamicand systemic perspective, however, the costs of a toxic release would beexpanded to include the erosion of social capital and the unraveling ofhousing prices, school quality, and other indicators of well-being thatoften accompany such disasters. (225) Likewise, the risk of a toxicrelease occurring would include not only well-characterized engineering,weather, and human operational factors, but also uncertain variablessuch as the possibility of terrorist acts. (226) Even seeminglywell-understood factors such as toxicity would be accompanied by anawareness that unforeseen exposure pathways, synergistic interactions,disease mechanisms, vulnerable subpopulations, and other unpredictablefeatures make toxic risk assessment inherently uncertain. (227)

Second, the partial equilibrium framing is only able to offermarginal efficiency improvements to a given status quo, rather than anentirely different imagined baseline from which to seek such marginalimprovements. (228) This limitation is significant because in somepolicy areas such as climate change, truly transformative alterations tothe status quo are required. This analytical point is critical: whenjudged according to conventional economic analysis, such transformationswill involve steps along the way that appear to be in-efficient. Thatis, in order to realize entirely new systems of energy, housing,transportation, manufacturing, waste .disposal, forestry, agriculture,and water treatment--all of which depend at present on unsustainablelevels of greenhouse gas emissions (229)--societies will need to adoptpolicies that seem welfare-decreasing when evaluated according tocost-benefit data that are derived from present orderings. One way ofunderstanding this second point is to imagine the pursuit of socialwelfare maximization as being akin to climbing a mountain. Partialequilibrium analysis offers narrow technical advice on how best to climbthat mountain. Through disciplined calculation, each proposed step isevaluated to determine whether it results in a gain of elevation. (230)Nowhere in the analysis, however, is the question posed, "Are we onthe right mountain?" (231)

Of course, for reasons of institutional competence and politicallegitimacy, no one should expect common law courts to direct us to theright mountain. Such wholesale changes in response to climate changewill come, if at all, from legislative and regulatory programs thatultimately join the New Deal and the Second Reconstruction in terms oftheir transformative impact on the American legal, economic, and socialorder. Nevertheless, as this Part details, the effort to assess thevalidity of climate-related tort claims may have significant secondaryeffects for the common law, encouraging judges to view less extreme factsettings as more amenable to tort resolution than they currently do. Itis possible, of course, that these secondary effects will occur inprecisely the opposite direction. Judges, in other words, might retrencheven further onto a narrow, classical liberal conception of tort law inthe face of extraordinary conceptual and empirical challenges to thatconception posed by climate change. They would do so, however, at thelong-term risk of the social relevance and viability of the tort system.To the extent that this Part appears to offer prediction, then, itshould be understood as an exercise in hopeful or aspirationalprediction. Many possible futures lie ahead for tort law and for thenotions of duty and responsibility embodied within it. The one sketchedhere is not only possible, but desirable.

A. Duty/Proximate Cause

Duty within the common law of tort must be attentive to changingcirc*mstances while remaining stable enough to honor privateexpectations. At times, this balancing act reaches a crisis point. AsJohn Witt has powerfully illustrated, common law judges came undertremendous strain during the late 19th century, as shocking rates ofinjury and death among industrial workers were difficult to square withprevailing tort doctrines and the free labor ideology that supportedthem. (232) The romantic ideal of freely bargaining, self-possessedworkers helped to normatively underwrite tort defenses such asassumption of risk and the fellow servant rule. (233) Yet, as theAmerican workplace changed dramatically in character, those samedoctrines seemed to become primarily a shield for capital owners ratherthan an enabler of autonomy for labor. (234) Although judges didexperiment with new principles and practices for redressing theindustrial carnage that came before them, they ultimately lost out tothe systems of workers' compensation that proliferated throughoutstate legislatures, largely displacing the common law of tort,workers' cooperative movements, and other institutional responsesto the accident crisis. (235) As Witt argues, part of tort law'sadaptive disadvantage was its inability to assimilate new socialscientific ways of apprehending the industrial landscape. (236) Whileclassical tort doctrines seemed capable of rationalizing away anyindividual case of workplace suffering, aggregated accident datapresented instead a policy problem of historically unprecedentedmagnitude. (237) "[I]n the face of such statistical regularities,classical tort law's attempt to assign fault and responsibilitythrough individualized inquiry into each work-accident case seemedbeside the point." (238)

In contrast to this experience, common law judges showed nimblenessin responding to the changing character of the American consumermarketplace, perhaps in part because of lessons they learned from theindustrial accident crisis. Starting with Cardozo's storied opinionin MacPherson v. Buick Motor Company, (239) and continuing until theliability counterrevolution of the 1980s, judges unabashedly andcreatively forged a new body of products liability law to respond to therise of a mass consumer marketplace. (240) Rather than remain locked ina contractual ideology that seemed increasingly out of touch with therealities of commodity distribution, judges instead set asidetraditional doctrines such as the privity barrier, opening the door to anew body of case law that articulated the duties manufacturers andmarketers owe to all foreseeable users of their goods. (241) The samejudicially conservative impulses that prevailed in the context ofworkplace torts seemed to have little force when it came toproduct-caused accidents. (242) Whatever its normative merits, thisproducts liability revolution had the effect of protecting the commonlaw from the kind of wholesale displacement that that had occurred inthe case of worker injury. Eventually consumer-focused regulatoryagencies would develop on the state and federal level, but--with thenotable exception of the United States Food and DrugAdministration--these agencies pose little if any threat to thedominance of the common law as overseer of product safety. (243)

Like industrialization and mass marketing in their respective eras,climate change ill fits the existing tort paradigm and its underlyingideology. Consider, for instance, the familiar framing of environmentalharm as a collective action problem. For the better part of two thousandyears, this lens .has influenced and at times dominated Westernunderstanding of why certain resources--such as the finite capacity ofthe earth to absorb greenhouse gases without serious repercussion--areprone to tragic overuse. (244) Unless individual self-interest can beconstrained through some mechanism, such as law or social norms, thelogic of the commons dilemma is inexorable: "burn 'em if yougot 'em, since the other guy is surely going to bum his." Intheir essay on climate change justice, Eric Posner and Cass Sunsteinrepeatedly return to this consequentialist alibi as an argument againstthe imposition of a legal duty: "[i]t is not negligent to fail tocontribute to a public good if not enough others are doing similarly, sothat' the public good would not be created even if one didcontribute." (245) With more subtlety, Keith Hylton attempts todistinguish between public goods-for which the government mustcompensate individuals when they are required to contribute--and publicharms--for which the government may impose nuisance liability againstindividual contributors. (246) The problem, of course, is determiningwhich is which. Are the Connecticut defendants creating a public harmwhen they emit greenhouse gases that contribute to climate change or arethey merely failing to preserve the public good of atmosphericstability? What are the relevant public goods in Kivalina--theelectricity grid and the highway transportation system, in which caseplaintiffs would seem to be bearing a disproportionate burden for thegoods' provision, or the atmosphere's limited absorptivecapacity, in which case defendants would seem to be unfairly saddled bynuisance liability? Expectations about resource ownership and sociallyappropriate behavior must drive the public good/public harm dichotomy inorder for it to do meaningful conceptual work, yet the task of lawfrequently is to subject those very expectations to fresh inquiry.

Whatever its logical force and empirical veracity, theconsequentialist alibi fails to provide hope and guidance in a warmingworld. Its seeming undeniability now clouds our thinking. Posner andSunstein, for instance, repeatedly claim that they are analyzing climatechange through notions of corrective justice, rather than welfarism.(247) Yet their conclusions at critical stages are driven bydistinctively welfarist habits Of thought: "As long as the costs[of emissions] are being toted up, the benefits should be as well, andused to offset the requirements of corrective justice." (248) Aslong as welfare consequences are used to "offset" alternativemoral theories, there will be no alternative moral theories. At bottomof the climate change dilemma is a pessimistic moral imagination. Unableat the global level to coordinate behavior through law or shared socialnorms, individuals instead expect the worst from others and therebybring out the worst in themselves. Nations do the same: afraid tounilaterally incur mitigation costs, they instead lock themselves intoan irresolvable game of greenhouse gas chicken. A different sort ofmoral imagination might anticipate an upward spiral from acts ofleadership and self-sacrifice, one that brings out the best in all.(249) Obviously, this hope can be proven wrong, as realists repeatedlyremind, but there is honor in a sucker's payoff when the stakes arethese. As Solzhenitsyn said, "Let the lie come into the world, evendominate the world, but not through me." (250)

Moral imagination might respond in a second way to the view thatindividual contributions to a commons dilemma are of inconsequentialeffect. The theoretical possibility of climate change tipping pointshelps actors to envision the impact of their emissions. If there doexist greenhouse gas concentration thresholds beyond which runawayclimate change scenarios may occur--caused, for instance, by a massivedieback of the Amazon, melting of the Antarctic or Greenland ice sheets,or release of massive stores of methane from the ocean floor (251)--thenindividual emitters may have to live with the possibility that theircontribution was the one that pushed the planet over the edge. It is notthat these tipping point scenarios actually undermine the commonsdilemma aspect of the climate change problem, but they do help maketangible the way in which discrete contributions to the problem matter,even though they appear only as proverbial drops in a bucket. Common lawprecedent for such an exercise exists in the asbestos context, wherecourts treat every significant exposure to asbestos as if it were afactual cause of plaintiffs cancer, even though scientists are unsurewhether the underlying biological mechanism for asbestos-related cancersis a threshold one. (252) Because we do know that catastrophicthresholds loom with respect to climate change, (253) the imaginativeexercise may be even more appropriate.

Moral imagination also is required to conceive of responsibility interms that extend beyond the presentist and individualistic orientationof classical liberalism. Posner and Sunstein repeatedly claim that"standard ideas about distributive or corrective justice poorly fitthe climate change problem." (254) Their concern about fit withcorrective justice principles stems from the facts that many of theindividuals responsible for the existing stock of greenhouse gasconcentrations are long dead, that differences in emissions levelswithin nations are obscured by per capita data, and that individualswill experience wildly varying welfare consequences from climate changeeven within the same region. In such a context, the requirement thatjustice be cashed out in individual terms poses a serious obstacle tothe design and implementation of any system of responsibility andredress. One response, then, is to maintain the conceptual framework forcorrective justice intact and conclude that the climate change problemsimply falls outside its purview, since "corrective justicerequires an identity between the victim and the claimant." (255) Adifferent approach is to try to build new frameworks for the analysis ofjustice, ones that are commensurate with the temporal and geographicscale of the problem. Tort law is unlikely to be the venue within whichsuch a project unfolds, but it may not be immune from the project'sinfluence.

Consider, in this respect the case of Barasich v. Columbia GulfTransmission Company, (256) in which a putative class of Louisianalandowners sued several oil and gas companies for exploration, pipeline,and shipping activities that left residents more vulnerable to propertydamage from wind and storm surge during Hurricanes Katrina and Rita.(257) Unlike Comer v. Murphy Oil, plaintiffs in Barasich faced nonecessity of causally linking specific hurricanes to the phenomenon ofclimate change. (258) Instead, their allegation of harm was tightly anddirectly linked to defendants' activity in reducing and impairingprotective marshland areas along the Louisiana coast. (259)Nevertheless, in dismissing the plaintiffs' trespass and nuisanceclaims, the court emphasized that such obligations traditionally onlyapply between "neighbors," which the court construed in narrowterms. (260) Similarly, with respect to plaintiffs' negligenceclaim, the court determined that under Louisiana law, defendants owed noduty of care to remote plaintiffs to avoid risk-enhancing alterations ofcoastal areas. (261) Despite the apparent expansiveness of the Louisianacode provision on negligence---in sweeping terms, the provision statesthat "[e]very act whatever of man that causes damage to anotherobliges him by whose fault it happened to repair it"--the courtheld that defendants were under no duty of care with respect to"these hundreds of thousands of plaintiffs to protect them from theresults of coastal erosion allegedly caused by operators that werephysically and proximately remote from plaintiffs or theirproperty." (262)

What can account for these holdings, other than visceral revulsionat the sheer magnitude of the claimed liability as in Strauss v. BelieRealty Co.? Despite rejecting defendants' political questionarguments, the trial judge nevertheless seemed driven by a concern thatthe weight of the case moved it from the domain of tort to politics,from adjudication to regulation. After all, the judge concluded heropinion by inviting plaintiffs to re-plead with a more narrow andcarefully constituted class: "By all accounts, coastal erosion is aserious problem in south Louisiana. [P]erhaps a more focused, lessambitious lawsuit between parties who are proximate in time and space,with a less attenuated connection between the defendant's conductand the plaintiff's loss, would be the way to test their theory.(263)

This equivocation was odd. The plaintiffs' case was premisedon the ecological consequences of oil and gas operations in the Gulf.They alleged that "as a result of the defendants' operations..., over one million acres of marshland have already been destroyed,and millions more essentially decimated, depriving inland communities,such as the City of New Orleans and St. Bernard Parish, of their naturalprotection from hurricane winds and accompanying storm surge."(264)

Thus, if the judge was willing to accept the ecological mechanismby which plaintiffs' harms allegedly occurred, then the reach ofdefendants' responsibility should be determined by the reliabilityof storm surge models, not by abstract principles of proximity andremoteness. Put differently, if the judge was willing to find a duty ofcare with respect to some landowners but not others, then her rulingwould represent an unexplained and only halfhearted embrace of thelessons of ecology.

The fundamental lesson of ecology is, of course, that everything isconnected; we are all "neighbors" in an environmental sense,whatever our classical liberal conceptions may hold. Hence, law'sintimate embrace of territoriality--and tort law's dependence onsome notion of proximity--both are severely tested by climate changeawareness. Some degree of retrenchment is naturally to be expected:witness, for instance, the strong reassertion of Westphalian nationalsovereignty and backing away from comprehensive global climateregulation that occurred at Copenhagen in 2009. (265) Likewise,notwithstanding modern expansions, the concepts of duty and proximatecausation in tort law remain substantially animated by a classicalliberal worldview in which individuals are deemed free to pursueactivities unless they impose harms upon identified victims that bearsome geographic, market, or other relational nexus to the actor. Ascommentators have noted, certain categories of harm such as emotionaldistress or pure economic loss are problematic on this account becausethey reveal us to be embedded in systems capable of spreading wide theharmful impacts of our behavior. (266) Tort law manages these conceptualthreats by recognizing only particularly salient and limited categoriesof emotional distress and economic loss recovery, and by otherwisepreserving the classical liberal fiction that we are atomistic andisolated from one another, save for our occasional physical collisions.Climate change deals a final blow to this fiction by malting thecausation of physical harm utterly independent of collision or, indeed,of any other familiar understanding of proximity. By comparison, theduty alleged in Barasich seems non-controversial, even mundane. (267)

Law in the twenty-first century will be preoccupied with theproblem of instilling responsibility within complex networks. Thechallenge for tort law will be particularly acute, as much of tort lawworks out the idea that responsibility needs to be confined, rather thanlocated in the first place. Individuals are thought to have limitedcapacity to care for others, not least because of their imperfectabilities to predict and prevent harmful consequences of action. Thevarious uses of foreseeability in tort law respond to this condition,providing cues to individuals to help them prioritize their limitedinvestments in the prevention of harm. (268) Not only practical, thisrule also is said to reflect principled notions of fairness:

 The basic idea is that it is unfair to impose liability for an injury unless the defendant may cogently be said to be responsible for bringing about the injury. D's conduct being a cause in fact of Y's injury is not sufficient for saying that D is responsible for bringing about Y's injury; D cannot be said to be responsible for Y' s injury if the action of D that caused Y' s injury is one with respect to which F's injury was an unforeseeable consequence. These propositions, put together, yield the conclusion that it is unfair to impose liability on D for Y's injury if that injury was merely an unforeseeable consequence of D's action. (269)

Whatever its appropriateness in earlier times, this interpersonalvision seems out of focus in the climate change context, where Y may bea many thousand year old Inuit tribe and where D may be a multinationalcorporation that ranks above most nations as one of the largest economicentities in the world. (270) Duty and foreseeability in this contextshould not be uncritically carried over from a nineteenth centurytemplate. Responsibility may need to be created, not limited.

One attractive option will be to focus on the instrumental efficacyof large institutional actors, such as corporations, or groups ofactors, such as industries. Notwithstanding isolated flirtation byjudges with a concept of industry-wide "enterprise liability,"(271) the basic account of agency in tort law remains essentiallyindividualistic. Nevertheless, climate change litigation may causecourts to renew their romance with supra-individual conceptions ofa*gency and responsibility, as the mismatch between the atomistic accountand our governance needs will become starkly apparent. Even in the farless extreme causation context presented by Barasich, the court bridledagainst plaintiffs' "allegations that all of thedefendants' activities caused all of the plaintiffs'damages." (272) Rejecting any notion of "group liability"that would allow plaintiffs to recover "without demonstrating anyindividual connection between any single member of the industry and theplaintiffs' harm," the court ruled instead that traditional(and insurmountable) causal requirements apply. (273) Again, a classicalliberal individualism was at work, one in which "groups" donot easily register as duty-bearing entities with causal capacity, justas individuals are not thought to owe obligations to society at large.After marinating in climate change litigation for a while, however,judges might view a case like Barasich differently. They might see forinstance, that the named defendants in Barasich had behaved as a groupin several conspicuous ways, including collectively lobbying to securerights to conduct the exploration and pipeline activities that allegedlycaused plaintiffs harm. (274)

Courts in the twenty-first century may also become increasinglysophisticated in their treatment of epistemic responsibility.Commentators frequently assume that causal pathways in the climatechange context are too complex and speculative to ground a duty of tortresponsibility under conventional approaches. (275) This may or may notbe true, (275) but it is certainly mistaken to assume thatforeseeability somehow exists independent of defendants and should beanalyzed as such. To ask what is foreseeable in order to groundresponsibility is to ignore the responsibility of those who influencewhat is foreseeable. In fact, as the Kivalina plaintiffs note in theircomplaint, major oil companies began funding research into the climatechange problem as far back as 1970, (277) right around the time that thefirst report of the U.S. Council on Environmental Quality warned that"carbon dioxide in the atmosphere could have dramatic and long-termeffects on world climate." (278) At a certain level of generality,then, foreseeability in the climate change context has been satisfiedfor decades. Following those early investigations, however, major oilcompanies shifted to a concerted effort to obfuscate publicunderstanding of climate change and to forestall domestic andinternational legal action to arrest greenhouse gas emissions. (279)Accordingly, part of the reason that commentators today believe sciencecannot trace climate change's causal pathways is that defendantshave invested in the production of scientific doubt. (280) Contrary tothe classical view, then, it may not be unfair to hold defendantsresponsible for an unforeseeable harm when the attention and reach offoresight is itself increasingly under their influence.

Tort law eventually will have to reckon with this dynamic, as itwill become impossible to maintain the assumption that a robustindependent body of knowledge exists to bring to bear on foreseeabilityquestions. Moreover, as David Owen has written, twenty-first centuryproblems are likely to be ones characterized by predictableunforseeability. (281) Increasingly, scientists are confident that wehave entered a new geological epoch, the Anthropocene, in light of thesheer scale and intensity of human interventions into earth systemprocesses. (282) To name just one among many unprecedented features ofthis age, atmospheric C[O.sub.2] levels are now higher than at any pointin the last 650,000 years. (283) Thus, it is reasonably foreseeable thatwe will face unforeseeable environmental challenges. Likewise, forprecisely the same reason that they seem to hold enormous promise, newtechnologies such as genetic and nanoscale engineering also pose dimlyunderstood and potentially considerable threats to human and ecosystemhealth. (284) Behaving reasonably under such circ*mstances cannot simplymean conforming to an existing understanding of risk and benefit.Instead, it must mean relating to uncertainty in a particular way, witha particular attitude. It might mean, for instance, deploying whatSheila Jasanoff calls "technologies of humility" (285) or whatBuzz Thompson refers to as "exploration capacity." (286)Scenario planning and other proactive, open-ended risk projectiontechniques might be required in order to behave reasonably toward noveltechnologies and activities, since their release constitutes anonreplicable experiment on the world. (287) Rather than risk deterringthe production of knowledge about risky products and activities throughfixed assumptions about foreseeability, tort law might instead activelymarshal the considerable epistemic capacity of private enterprise byimposing more dynamic duties of humility, caution, and investigation. Inthe extreme, judges might reconsider their abandonment of the"constructive knowledge" approach to foreseeable risk. (288)

B. Breach

We are all embedded in systems in which responsibility is diffusedto the vanishing point. As a result, the most consequential instances ofnegligence today are quite literally in the air, beyond the vision ofthe "eye of ordinary vigilance." Once, extra-ordinaryvigilance was a familiar feature of tort law, imposed as a duty oninnkeepers, common carriers, promoters of ultrahazardous activities, andother designated status holders. (289) The common law's move towarda general duty of ordinary care, motivated largely by instrumentalistrather than classical convictions, has ironically obscured theinstrumental benefits of a renewed focus on status, particularly thestatus of institutional actors: plaintiffs look to electric utilitiesand other choking points in the anthropogenic carbon cycle notnecessarily because those actors are especially morally culpable, butbecause they are powerful entities created by law and capable ofexerting strong influence over the systems in which we are embedded. Ifwe think of fossil fuel companies as natural persons, we becomeembroiled in intractable disputes about whether and when they knew ofclimate change, how seriously they have manipulated public understandingand the political process, and so on. If we simply think of them asmalleable creations of law, then we sidestep such questions and focusinstead on how they might be deployed for public purposes. This does notmean, as some have opined, that corrective justice and othernonwelfarist considerations have no bearing on corporate responsibility.(290) It does mean that instrumental considerations loom larger for themost instrumentally consequential actors within complex networks.

Such an orientation has implications for the assessment ofliability. For instance, one effect might be to reveal an even deeperwisdom behind Judge Learned Hand's famous admonition in The T.J.Hooper v. Northern Barge Corporation, (291) that "a whole callingmay have unduly lagged in the adoption of new and availabledevices." (292) This statement is often understood as anacknowledgment that markets sometimes fail and that independent judicialassessment of reasonableness is therefore merited, rather than deferenceto prevailing market conditions through a customary care standard. (293)As the climate change problem reveals, independent judicial assessmentof market outcomes may be merited not only by the kind of discretemarket failures that justify partial equilibrium analysis, but also bypervasive structural features of the economy that no longer aresustainable, even if they might not as yet fail a partial equilibriumanalysis. Judges will not become macroeconomists or energy systemsanalysts, of course, but as the broad features of the climate changeproblem are grasped by judges, they may experience a macro-scale shiftin their attitude toward conventional economic activities. Judicialinterest in strict liability--episodic and marginal in the past(294)--may revive as the accumulated negative externalities ofgreenhouse gas emissions come to loom far larger than the felt positiveexternalities of economic activity.

In truth, attitudes of that sort have long driven tort doctrine,although typically in favor of negligence rather than strict liability.(295) Even during tort law's classical phases, judges struggled toexplain why faultless victims of nonnegligent harms should bear a loss,rather than the actor who caused the harm. (296) Appeals todefendants' liberty interests and the value of freedom of actionalways rang hollow, given the obvious impairment of those same interestsamong injured plaintiffs. (297) Pressed for an account, judges andcommentators turned to a nebulous concept of social good that was saidto flow from industrious activity. (298) Often, such appeals took theform of rather histrionic claims about the "barbarism" and"savage life in a wilderness" that apparently would follow ifindividuals were not free to pursue their activities without fear ofstrict liability. (299) Although overt references to the ideologies ofcolonialism and Manifest Destiny eventually fell away, the corerationale for preferring negligence over strict liability remained oneof a basic, almost aesthetic preference for society's doers. AsOliver Wendell Holmes, Jr. most famously put it:

 A man need not, it is true, do this or that act,--the term act implies a choice,--but he must act somehow. Furthermore, the public generally profits by individual activity. As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of what is at once desirable and inevitable upon the actor. (300)

Classical tort law's preference for the doer later wasformalized by law and economics, as the choice between strict liabilityand negligence came to be seen as a matter of summing the negative andpositive externalities generated by a defendant's activity.According to canonical accounts, the costs and benefits of accidents area function of two key variables: care levels and activity levels. (301)The former has to do with the level of precaution an actor utilizeswhile engaging in an activity, while the latter has to do with thefrequency and scale of the activity. (302) With respect to any accident,then, judges may ask both whether the actor adopted all cost-justifiedinvestments in precaution and whether the activity in its overall costsand benefits was justified at all. The latter activity level analysis issaid to be difficult, if not impossible for courts to conduct.Undertaking a macro-scale assessment of the costs and benefits of anactivity requires tremendous amounts of information. It also invitesjudges to make critical assessments not merely of the marginal costs andbenefits of some added safety step, such as driving within the speedlimit, but of the more personal and subjective benefits of the activityitself. Judges would be forced to ask not only whether one drovecarefully, but why one was driving at all: Was it to take Grandma tochurch oh Sunday? Was it to visit her in the hospital? Or was the actorjust "out for a drive," as people used to say?

On the law and economics account, such judgments are thought to betoo costly and controversial for judges to undertake. Thus, thedeterminative factor in choosing between strict liability and negligenceis said to hinge on these uncounted impacts of activity. (303) Wherejudges suspect that an activity poses significant residual costs evenafter all reasonable precautions have been undertaken, strict liabilityis justified. (304) Implicitly, then, the canonical law and economicswisdom assumes that activities tend to offer positive benefits forsociety, over and above those which are already captured by the pricemechanism. (305) Absent such an assumption, it would remain unexplainedwhy negligence is the default rule that must be overcome through ashowing of significant unregulated costs from activity. Courts just aseasily could apply strict liability as the default rule unless anactivity is shown to offer significant uncaptured benefits. (306) Thus,the classical liberal preference for the doer remains at work, albeitwith more elaborate theoretical trappings. The dominance of thenegligence standard for unintentional harms, and the gradual migrationof trespass and nuisance liability away from strict standards ofresponsibility, is justified on the ground that activity levels aregenerally not thought to need disciplining, since positive externalitiesof activity tend to dominate negative ones. (307)

Because of climate change, the presumption that external costs andbenefits of activity are positive on net is becoming no longer tenablewith respect to major segments of the economy. Although economic studiesof climate change still tend to recommend fairly tepid policy responses,(308) the tenor of the debate is starting to change even withineconomics, as thoughtful ,scholars are realizing that the field'sprior treatment of such issues as discounting, uncertainty, catastrophicrisk, global equity, and adaptive capacity had drastically understatedthe severity of the climate change problem. (309) Moreover, with respectto the choice between strict liability and negligence, the insight oflaw and economics is to focus specifically on externalized costs andbenefits, rather than on those costs and benefits which are alreadyincorporated into an actor's private decisionmaking. In the absenceof corrective legal interventions, actors have every reason to seek tocapture gains from external benefits and every reason to avoidresponsibility for external costs. In light of these lopsidedincentives, one would naturally expect the external costs and benefitsof greenhouse gas emissions to reflect a negative balance. Thus, thelongstanding assumption that "the public generally profits fromindividual activity" may be subjected to intense scrutiny in comingyears, as the accumulated debts from such activity become increasinglydifficult to ignore. At that point, the theoretical apparatus devised bylaw and economics to explain the dominance of negligence liability willinstead provide strict liability's most powerful justification.

C. Causation

Classical tort is most comfortable with liability when A is shownto have directly and exclusively caused a discrete harm to B. Advocatesof this approach seek epistemic assurance that a tort defendant is thecause of plaintiffs injury in order to implement "conceptions ofindividual responsibility that coincide nearly with eighteenth centuryscience's notions of causation." (310) Our understanding ofmany harms in the twenty-first century bears little resemblance to thisatomistic and mechanistic worldview. An adverse outcome may be onlyprobabilistically related to a prior action, given the inability ofa*ggregative knowledge schemes to disaggregate causal influence inspecific cases. The outcome may be the result of not one action orseries of actions by a single actor, but rather a confluence of multipleactions by multiple actors, given the ability of complex, adaptivesystems to combine and magnify causal impacts. Climate change rendersthis new worldview both plain and urgent, as billions of emitters nowcontribute to trend elevations that are difficult to dissect in anindividual ease, but that may ultimately lead to catastrophic tippingpoints. With respect to such "fat tail" risks, scientists areconfident that they will occur if emissions continue unabated, (311) butthe ability to pinpoint time scales and risk factors is hampered by thelack of a spare planet on which to experiment.

How should judges adapt to this new worldview? Consider twoquotations from Judge Richard Posner: "[T]he courtroom is not theplace for scientific guesswork, even of the inspired sort. Law lagsscience; it does not lead it."; (312) "Knowledge increasinglyis statistical, and judges must not let themselves lag too far behindthe progress of knowledge." (313)

Both quotations posit a lag between science and the courtroom, butthe latter evinces an obligation on judges to keep up. For some timeduring the latter half of the twentieth century, judges did attempt tokeep up, implementing new methods of dealing with scientific andstatistical evidence of harm. Market share liability was devised as away of apportioning responsibility for harm in the absence of othermeans to disaggregate causal influence. Loss of chance recovery was madeavailable to those whose dim chances for survival might otherwise haverendered them ineligible for protection from negligent behavior under amore-likely-than-not causation test. (314) Subtle toxic causationpresumptions were incorporated into contexts where orthodox doctrineswould otherwise have prevented recovery due to uncertainty regarding theprecise biological mechanism of a disease. (315) At some point, however,these various developments were stopped short: market share liabilitywas largely limited to the DES context, (316) loss of chance recovery tothe medical malpractice context, (317) and novel toxicity presumptionsto the asbestos context. (318)

These limitations are difficult to understand from an internalperspective on tort law. As commentators have noted, the instrumentaland fairness argument in favor of market share liability need not belimited to the kind of generic physical fungibility posed by DES. (319)Other conceptions of fungibility--such as the generic lack of knowledgeof any risk of HIV-AIDS among blood and plasma suppliers prior to theCenter for Disease Control's warning in 1983 (320)--could just aseasily support the market share theory. Likewise, the loss of chancedoctrine, at bottom, rests on judicial recognition that certainincreased risks can be sufficiently well-characterized to constitute aharm, and that certain actors should be made liable for such harms whenthey stand in relations of heightened responsibility vis-a-vis theircharges, even if the percentage change in plaintiffs' outlook doesnot clear a more-likely-than-not hurdle. These reasons need not belimited to the medical malpractice context; industrial employers, forinstance, could also be said to fit the identified conditions to theextent that tort law is not displaced by workers compensation schemes.More generally, increasing sophistication in the scientificunderstanding of risk counsels a shift from classical to probabilisticcausation principles as a guiding template for analysis. Rather thanbut-for causation, courts might take what Guido Calabresi calls"causal linkage" as the basic touchstone for analysis."(321) At the least, such a conception might be accepted in the publicnuisance context when governmental plaintiffs allege an elevated risk ofharm over a time series of events or within a population of individualsor resources. More ambitiously, courts might fashion a system ofproportionate recovery by individuals for mere risk exposure, ascommentators have long advocated. (322)

Ironically, the expressed desire of major greenhouse gas emittersto pursue a "Scopes monkey trial of the 21st century" mayhasten these developments. Following the Supreme Court'sinfluential opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(323) all federal and most state courts have adopted a more proactivestance toward the admission and supervision of scientific evidence.(324) In theory, the Daubert process need not entail a particularvalence in favor of plaintiffs or defendants in the tort law context,since the espoused goal of the Court's opinion was to move judgesaway from a simple scientific acceptance test to a morejudicially-engaged inspection of the actual techniques andmethodological rigor behind proffered scientific evidence. In practice,commentators regard Daubert as having created a heightened bar forplaintiffs in environmental, toxic tort, and products liability suits,as judges have shown a willingness to utilize their gatekeeper role tohold plaintiffs' experts to a high standard of scientific veracity.(325) Climate change litigation, however, may reverse this dynamic,particularly if defendants do choose to contest basic features ofclimate science. If judges are faced with climate change scientists andtheir skeptical counterparts in a series of intensive Daubert hearings,they will find the former group more worthy of admission to testify onevery relevant criteria identified in Daubert and subsequent case law.(326) Judicial concern about "junk science"--usually focusedon experts hired by plaintiffs' lawyers in advance oflitigation--instead may shift to scientists and spokespeople hired bygreenhouse gas emitters. (327) The result may be a cultural shift amongjudges in their attitudes toward scientific evidence and a concomitantwillingness to re-engage their earlier efforts to modernize causationdoctrine.

D. Harm

As feminist torts scholars have demonstrated, implicit conceptualdichotomies often lurk beneath the surface of tort doctrine: physical iscontrasted with emotional, individual with communal, manmade withnatural, immediate with distant, present with future, and so on. (328)With varying degrees of subtlety, one side of these pairings isprivileged over another, often on the theory that tort cannot provideredress for all wrongs and thus must establish some system of triage.(329) More insidiously, the pairings become implicitly gendered, suchthat one side is viewed as prototypically male and the other female.(330) The hierarchy of interests then inadvertently becomes a hierarchyof gender. These "deep structures of tort law" (331) can exerta powerful and unnoticed impact on judicial decisionmaking.Disfiguration of sexualized female body parts, for instance, can leadjudges to conclude that an emotional injury has been suffered. (332)Though obviously physical in a basic sense, the injury does not code assuch because it inflicts harm on a body part that is otherwise coded as"female," and therefore assumed to give rise to"emotional" suffering. (333) Surfacing tort law's deepstructures and subjecting them to critique has been a major and fruitfulfocus of feminist tort scholarship for some time now. Intriguingly,climate change litigation may aid this cause by making more visible tortlaw's disfavored interests. Certain forms of injury that have beenrationalized away as incidental or marginal may come to appear moresignificant when presented in this dramatic new light.

Consider the distinction between individual and communal interests,which relates to similar dichotomies between personal and relational orproperty and cultural interests. In classical liberal fashion, theformer set of interests is privileged over the latter within tort law,as evidenced by limitations on loss of consortium, bystander emotionaldistress, and other claims that express an inherently intersubjectiveharm. On broader social dimensions, judges struggle to comprehend what aclaim for harm to cultural integrity might even mean. In the wake of the1989 Exxon Valdez disaster, for instance, a class of Alaska Nativessought recovery for an irreparable impairment to their way of life, overand above the more tangible deprivations they had suffered. (334)Addressing this claim, the Ninth Circuit first noted that the AlaskaNative class had settled economic claims stemming directly from loss offishing resources. (335) The panel then pondered what could be meant by"cultural damage" apart from those losses. (336) To the extentthat culture was acknowledged by the panel, it was understood to be thebasic right of every individual to pursue a life of his choosing inliberal society. (337) From that perspective, the Alaska Natives failedto satisfy the "special injury" requirement that would enablethem to recover as private litigants in the context of a publicnuisance: "While the oil spill may have affected Alaska Nativesmore severely than other members of the public, the right to obtain andshare wild food, enjoy uncontaminated nature, and cultivate traditional,cultural, spiritual, and psychological benefits in pristine naturalsurroundings is shared by all Alaskans." (338)

A sleight of hand was at work here. It may be that all Alaskans canpursue the various disaggregated activities that were impaired by theExxon Valdez disaster and that collectively appear to compose the NativeAlaskans' distinctive culture. But only Native Alaskans can claimhistorical continuity with this culture. For all these thousands ofyears, it is only Native Alaskans who have been returning the bones ofconsumed salmon to the waters from which they are caught, with gratitudeand hope for next year's harvest. (339) To imagine thatliberalism's serf-made man might somehow fashion himself into theequivalent of a Native Alaskan is to deprive the group injury ofdistinctiveness through what amounts to a threat of cultural entry. Andbecause liberalism promises to every individual maximal freedom topursue his own life course, this hypothetical threat of entry is alwaysavailable to defeat a claim of cultural distinctiveness.

As the number of lost Cultures, languages, and territorialhomelands mounts, (340) judges will perhaps come to see group claimsmore charitably. Plaintiffs in the Kivalina litigation are also NativeAlaskans, among the approximately 170,000 Inuit people that currentlylive in the Arctic. (341) Although their territory now belongs largelyto the United States, Canada, Greenland, and Russia, the Inuit havelived in the Arctic for as long as 8000 to 9000 years. (342) To surviveunder such extreme conditions, the Inuit depend on accumulated knowledgeabout wildlife availability, weather patterns, and other ecologicalprocesses. (343) With Arctic temperatures rising faster than anywhereelse on the planet, (344) much of the Inuit way of life is beingchallenged. For instance, traditional food sources such as caribou,moose, and waterfowl are shifting in range and declining in abundance.(345) Important native plant species also are in decline. (346)Traveling in search of food is becoming less predictable and moredangerous due to changing weather patterns, intensification of storms,thinning of sea and lake ice, and loss of snow for emergency shelter.(347) As temperatures warm, traditional ways of drying fish and storingmeat are becoming less safe and reliable. (348) Accordingly, the Inuitare shifting to canned goods and other Western foods in place of theirtraditional diet, with accompanying rises in diabetes and otherdiseases. (349)

Already working against the effects of colonial and postcolonialattempts to eradicate indigenous culture, (350) elders report increasingdifficulty passing on traditional knowledge, as the veracity of thatknowledge seems less obvious to younger generations. (351) Thelongstanding Inuit practice of sharing the fruits of a hunt is alsocoming under strain. (352) Developed as a way to spread the risk oflow-probability, high-payoff hunts for whales and other large mammals,the sharing tradition also reinforces communal solidarity. But with somehunting grounds no longer viable due to sea ice loss and other changes,the stability of the hunting network system is under threat. (353)Higher levels of stress and anxiety also are reported, in large partbecause of a declining ability to express and enact the Inuit identityin its familiar form. (354) Unfortunately, these trends will notreverse: given the existing stock of greenhouse gases in the atmosphere,the level of emissions expected under even the most optimisticmitigation scenario, and the special vulnerability of the Arctic toclimate change impacts, the Inuit can expect an increasingly unfamiliarand inhospitable environment in the coming decades. Ironically, then,the reality of group-based cultural interests may become more tangibleto courts precisely because their disappearance from the world makestheir uniqueness and non-replicability more plain. Claims premised onclimate change harms would still face a variety of other obstacles, butin a more tractable context like the Exxon Valdez litigation, courts mayno longer assume that the cultural harm at issue is indistinct.

A similar dynamic already seems to be playing out in the common lawwith respect to ecological resources. Although American property andtort law traditionally expressed a bias against intact wilderness and infavor of human development of land, (355) some courts now arerecognizing that a variety of valuable ecosystem services are derivedfrom parcels of land that previously would have been coded asunderexploited. "These ecosystem services include flood mitigationand groundwater recharge from wetlands, water filtration and sedimentcapture from forests, nutrient cycling, gas regulation, pollination,thermal regulation, carbon sequestration, and so on." (356) AsProfessor J.B. Ruhl has argued, advances in the scientific understandingand economic monetization of such services enable their recognition asprotectable interests under traditional common law tests. (357) Whatonce would have appeared as an exotic or speculative claim increasinglyseems "rather plain vanilla as far as nuisance doctrine isconcerned." (358) Thus, courts are beginning to adopt a sensibilitytoward land use that is more ecologically informed, breaking down thelongstanding dichotomy between development, seen as productive, andwilderness, seen as wasteful or dangerous.

The New Hampshire Supreme Court, for instance, has upheld a lowercourt order requiring relocation of a home that had been built onwetlands, thereby altering the area hydrology in a way that increasedflooding on plaintiffs land. (359) Likewise, the Minnesota Supreme Courthas upheld negligence liability against landowners whose pesticidespraying activities on their own land foreseeably harmed bees that werevisiting to forage from a neighbor's beekeeping operation. (360)The Barasich litigation is also instructive in this regard, asplaintiffs successfully impressed upon the trial judge the seriousnessof marshland erosion, even if they did not prevail in establishing aduty owed by defendants to protect the marshland's ecologicalintegrity. (361) Climate change suits will further this exercise injudicial education, as the attempt to understand any climate change harmforces judges to think ecologically. (362) Ecosystem services that werepreviously overlooked or undervalued become more legible and material.Distances that seemed remote become more intimate, as the naturalpathways that connect them are brought into view. Accordingly, itbecomes less comfortable to maintain the traditional assumptions that"natural" and "distant" interests are less importantthan those that are "manmade" and "immediate."

Less Comfortable too will be the traditional assumption that riskof future harm is not itself an injury. In the asbestos context, such anassumption drove the Supreme Court to reject medical monitoring,fear-of-exposure, and enhanced risk theories of tort recovery, out ofconcern that such harms are "comparatively less important"than realized harms. (363) While state courts have shown somewillingness to allow recovery for medical monitoring expenses on accountof toxic substance exposure, they too have rejected the notion thatenhanced risk is itself a compensable harm. (364) Like the somewhatarbitrary restriction of loss of chance recovery to the medicalmalpractice context, (365) courts have not adequately justified thisstance. Concern over limited funds and the need to prioritize recoveryis one attempt, but it is unsatisfactory. From a corrective justiceorientation, it does seem problematic to allow recovery on account ofenhanced risk if "comparatively more important" harms willlater go uncompensated. From an instrumentalist orientation, however,the limited fund problem seems less pressing since the incentive effectsof enhanced risk recovery going forward would be to discourageactivities that give rise to a limited fund problem in the first place.Because the ability to attract capital in furtherance of potentiallyharmful activities or products would be lessened, tort law would helpchannel economic activity toward softer development paths, while stillmaintaining the flexibility and decentralized decisionmaking for whichmarkets are heralded. Governance would, in a sense, be distributedthroughout the market by altering the constraints under which marketactors optimize. (366)

Short-sighted and optimistic habits of thought frequently lead usto downplay the significance of uncertain future harms in pursuit ofcurrent gains. (367) The debt overhang from these bargains is beginningto appear worrisome to those who study it. Climate change litigationoffers a useful debiasing opportunity because it focuses courts'attention on the extraordinary inertia and risk potential of the climatesystem. Familiar linear understandings of time become confused in theclimate change context, where emissions are long-lived and systempatterns are often irreversible. The possibility of runaway climatechange and other catastrophic scenarios focuses attention on the"fat tails" of the risk distribution, while the reality ofsystem inertia--both in the climate system and in social systems such asenergy or transportation infrastructure--forces those scenarios intopresent consideration. The decision to build a new coal-firedelectricity plant, for instance, can no longer be evaluated according tothe present discounted value of future mean risk estimates. Or, rather,it is no longer reasonable to evaluate the decision in that manner.Instead, the reality of path dependence in energy infrastructureinvestment and the possibility of climate change catastrophe demandsmore by way of prevention and insurance than it does optimalcost-benefit balancing. (368) Likewise, the implementation of dutiestoward future generations demands consideration of the distribution ofrights and resources across time, rather than the normalization of costsand benefits according to a discount rate. The intergenerationaldistribution gives rise to discount rates; it cannot be determined bythem. (369)

Once judges have understood these aspects of the climate changeproblem, they may view risk recovery as a useful epistemological devicefor bringing the future into present focus and attention. Again, climatechange plaintiffs will face a variety of remaining doctrinal obstacles,but for other victims of future harm, courts may begin to see the wisdomof fashioning mechanisms to overcome temporal neglect. By comparison tothe climate change conundrum, the latency problem posed in more gardenvariety environmental and toxic tort suits seems quite manageable. ASregulators grapple with the challenge of compounding centuries-spanningclimate impacts into the price of carbon, courts may feel less timidusing the liability system to bridge two or three decades in the case oftoxic substances exposure. This may be especially likely if regulatorsfind themselves increasingly unable to prioritize such risks foroversight, given the sheer magnitude and complexity of their othertasks. By adapting to these changes--both in the world of risk and inits regulation--common law judges would ensure the continued relevanceand importance of tort law.

IV. CONCLUSION

Notwithstanding admirable scholarly attempts to encapsulate itsintellectual essence, tort law does not exist in a vacuum as the pureunfolding of an internal logic. Nor does it inevitably and predictablyrespond to material conditions outside the courtroom. Nor finally doesit have a monopoly on principles and procedures for redressing andpreventing harm. Instead, ideas about the proper form and function of'tort law must continually interact with the raw realities of humansuffering and with various alternative institutions that address suchsuffering. (370) Obviously, such a complex and contingent matrix doesnot lend itself readily to prediction, but if scientists are evenremotely correct in their assessment of harms to be expected fromgreenhouse gas emissions, then climate change will enter prominentlyinto tort law's evolutionary dynamics. Accordingly, this Articlehas offered speculative discussion on what a barrage of climate changetort suits might do for the development of tort law itself. It hasargued that judges likely will not award damages or issue injunctionsfor climate-related harms, but that they may find themselves affected inother ways by the very process of rejecting such claims. As a result,the tort system may shift to keep in alignment with an administrativestate that is increasingly preoccupied by grander and more complicatedchallenges than the previous century posed.

Even as climate change tort suits fail on the merits, they may yetchange the air.

(1) See Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp.2d 863 (N.D. Cal. 2009) (granting defendants' motion to dismiss);California v. Gen. Motors Corp., No. C06-05755 MJJ, 2007 WL 2726871(N.D. Cal. Sept. 17, 2007) (granting defendants' motion todismiss); Comer v. Murphy Oil USA, No. l:05-CV-436-LG-RHW, 2007 WL6942285 (S.D. Miss. Aug. 30, 2007) (granting defendants' motion todismiss), rev'd, 585 F.3d 855 (5th Cir. 2009), panel opinionvacated en banc, 607 F.3d 1049 (5th Cir. 2010); Connecticut v. Am. Elec.Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (grantingdefendants' motion to dismiss), vacated, 582 F.3d 309 (2d Cir.2009), cert. granted, 79 U.S.L.W. 3342 (U.S. Dec. 6, 2010) (No. 10-174).For discussion of the justiciability aspects of these suits, seeBenjamin Ewing & Douglas A. Kysar, Prods and Pleas: LimitedGovernment in an Era of Unlimited Harm (2010) (working paper) (on filewith author).

(2) See Am. Elec. Power Co., 406 F. Supp. 2d at 265 (grantingdefendants' motion to dismiss), vacated, 582 F.3d 309, cert.granted, 79 U.S.L.W. 3342 (U.S. Dec. 6, 2010) (No. 10-174).

(3) See Randall S. Abate, Automobile Emissions and Climate ChangeImpacts: Employing Public Nuisance Doctrine as Part of a "GlobalWarming Solution"in California, 40 CONN. L. REV. 591 (2008); MylesAllen et al., Scientific Challenges in the Attribution of Harm to HumanInfluence on Climate, 155 U. PA. L. REv. 1353 (2007); David A. Grossman,Warming Up to a NotSo-Radical Idea: Tort-Based Climate ChangeLitigation, 28 COLUM. J. ENVTL. L. 1 (2003); Shi-Ling Hsu, A RealisticEvaluation of Climate Change Litigation Through the Lens of aHypothetical Lawsuit, 79 U. COLO. L. REV. 701 (2008); David Hunter &James Salzman, Negligence in the Air: The Duty of Care In Climate ChangeLitigation, 155 U. PA. L. REV. 1741 (2007); Timothy D. Lytton, UsingTort Litigation to Enhance Regulatory Policy Making: EvaluatingClimate-Change Litigation in Light of Lessons from Gun-Industry andClergy-Sexual-Abuse Lawsuits, 86 TEX. L. REV. 1837 (2008); Bradford C.Mank, Standing and Future Generations: Does Massachusetts v. EPA OpenStanding for Generations to Come.?, 34 COLUM. J. ENVTL. L. 1 (2009);Bradford C. Mank, Standing and Global Warming.. Is Injury to All Injuryto None.?, 35 ENVTL. L. 1 (2005); James R. May, Climate Change,Constitutional Consignment, and the Political Question Doctrine, 85DENV. U. L. REV. 919 (2008); Thomas W. Merrill, Global Warming as aPublic Nuisance, 30 COLUM. J. ENVTL. L 293 (2005); Matthew F. Pawa &Benjamin A. Krass, Global Warming as a Public Nuisance: Connecticut v.American Electric Power, 16 FORDHAM ENVTL. L. REV. 407 (2005);Christopher R. Reeves, Climate Change on Trial: Making the Case forCausation, 32 AM. J. TRIAL ADVOC. 495 (2009); Amelia Thorpe, Tort-BasedClimate Change Litigation and the Political Question Doctrine, 24 J.LAND USE & ENVTL. L. 79 (2008); Jonathan Zasloff, The JudicialCarbon Tax: Reconstructing Public Nuisance and Climate Change, 55 UCLAL. REV. 1827 (2008); Blake R. Bertagna, Comment, "Standing" Upfor the Environment: The Ability of Plaintiffs to Establish LegalStanding to Redress Injuries Caused by Global Warming, 2006 BYU L. REv.415 (2006); Erin Casper Borissov, Note, Global Warming: A QuestionableUse of the Political Question Doctrine, 41 IND. L. REV. 415 (2008);Nigel Cooney, Note, Without a Leg to Stand on: The Merger of Article IIIStanding and Merits In Environmental Cases, 23 WASH. U. J.L. &POL'Y 175 (2007); James R. Drabick, Note, "Private"Public Nuisance and Climate Change: Working Within, and Around, theSpecial InJury Rule, 16 FORDHAM ENVTL. L. REV. 503 (2005); Daniel J.Grimm, Note, Global Warming and Market Shoe Liability: A Proposed Modelfor Allocating Tort Damages Among C[O.sub.2] Producers, 32 COLUM. J.ENVTL. L. 209 (2007); Benjamin P. Harper, Note, Climate ChangeLitigation: The Federal Common Law of Interstate Nuisance and FederalismConcerns, 40 GA. L. REV. 661 (2006); Shawn M. LaTourette, Note, GlobalClimate Change." A Political Question?, 40 RUTGERS L.J. 219 (2008);Kirk B. Maag, Note, Climate Change Litigation: Drawing Lines to AvoidStrict, Joint, and Several Liability, 98 GEO. L.J. 185 (2009);Christopher L. Muehlberger, Comment, One Man's Conjecture isAnother Man's Concrete: Applying the "Injury-in-Fact"Standing Requirement to Global Wanning, 76 UMKC L. REV. 177 (2007);Sarah Clinger, Comment, Filling the Void In an Otherwise OccupiedField" Using Federal Common Law to Regulate Carbon Dioxide In theAbsence of a Preemptive Statute, 24 PACE ENVTL. L. REV. 237 (2007);Joseph M. Stancati, Note, Victims of Climate Change and Their Standingto Sue: Why the Northern District of California Got it Right, 38 CASE W.RES. J. INT'L L. 687 (2006-2007); Myles R. Allen & RichardLord, The Blame Game: Who Will Pay for the Damaging Consequences ofClimate Change?, 432 NATURE 551 (2004); Matthew F. Pawa, Global Warming:The Ultimate Public Nuisance, 39 Envtl. L. Rep. (Envtl. Law Inst.) 10230(2009); David A. Dana, The Mismatch Between Public Nuisance Law andGlobal Warming (Nw. U. Pub. L. & Legal Series, Working Paper No.08-16, L. & Econ., Working Paper No. 08-05, May 6, 2008), availableat http://papers.ssrn.com/so13/papers.cfm?abstract_id=1129838. For anespecially early and thoughtful contribution, see Eduardo M. Penalver,Acts of God or Toxic Torts? Applying Tort Principles to the Problem ofClimate Change, 38 NAT. RESOURCES J. 563 (1998). For exploration ofclimate change torts as part of an insightful analysis ofefficiencybased and justice-based approaches to global climate changepolicy, see Amy Sinden, Allocating the Costs of the Climate Crisis:Efficiency Versus Justice, 85 WASH. L. REV. 293, 323-39 (2010). For acollection of recent essays exploring the implications of climate changelitigation in a variety of contexts both tort and non-tort, seeADJUDICATING CLIMATE CHANGE: STATE, NATIONAL, AND INTERNATIONALAPPROACHES (William C.G. Burns & Hari M. Osofsky eds., 2009).

(4) Harper, supra note 3, at 698.

(5) See Ewing & Kysar, supra note 1, at 6.

(6) See J.B. Ruhl, Climate Change Adaptation and the StructuralTransformation of Environmental Law 40 ENVTL. L. 363, 401 (2010).

(7) See generally JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC 4(2004) ("This book is about the American industrial-accident crisisand the transformations it occasioned in American law. Beginning soonafter the Civil War, industrial accidents gave rise to a series oflarge-scale experiments in social, industrial, and legal reform. Judgesand juries developed an entire field of law known as the law oftorts."); LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 516-23(3d ed. 2005) (discussing workers' compensation and the"liability explosion").

(8) Sarah Krakoff, Fragmentation, Morality, and the Law of GlobalWarming 28 (Univ. of Colo. Law Sch., Legal Studies Research PaperSeries, Working Paper No. 07-10, 2007), available athttp://papers.ssrn.com/so13/papers.cfm?abstract_id=976049.

(9) For critical overviews, see AEI-BROOKINGS JOINT CTR. FORREGULATORY STUDIES, REGULATION THROUGH LITIGATION (W. Kip Viscusi, ed.,2002); ANDREW P. MORRISS, BRUCE YANDLE, & ANDREW DORCHAK, REGULATIONBY LITIGATION (2009). For the origination of the term, see Robert B.Reich, Regulation Is Out, Litigation Is In, USA TODAY, Feb. 11, 1999, at15A.

(10) See Eric A_ Posner, Tobacco Regulation or Litigation?, 70 U.Cm. L. REV. 1141, 1155 (2003) ("Th[e] claim that there is a specialclass of troubling 'regulation by litigation' cases willstrike lawyers as odd. Tort law is a form of regulation, and always hasbeen .... [O]ne suspects that Viscusi does not understand this basicpoint.") (reviewing W. KIP VISCUSI, SMOKE-FILLED ROOMS: APOSTMORTEM ON THE TOBACCO DEAL (2002)).

(11) Cf. Lon L. Fuller, The Forms and Limits of Adjudication, 92HARV. L. REV. 353, 394-404 (1978) (describing the concept of a"polycentric" task).

(12) See Connecticut v. Am. Electric Power, 582 F.3d 309, 325 (2dCir. 2009) ("[N]uisance principles contribute heavily to thedoctrinal template that underbraces [environmental] statutes...."(quoting Me. People's Alliance & Natural Res. Def. Council v.Mallinckrodt, Inc., 471 F.3d 277, 286 (1st Cir. 2006))); WILLIAM H.RODGERS, JR., HANDBOOK ON ENVIRONMENTAL LAW [section] 2.1, 'at 100(1977) ("The deepest doctrinal roots of modern environmental laware found in principles of nuisance .... Nuisance actions have involvedpollution of all physical media air, water, land--by a wide variety ofmeans .... Nuisance actions have challenged virtually every majorindustrial and municipal activity which is today the subject ofcomprehensive environmental regulation .... Nuisance theory and case lawis the common law backbone of modern environmental and energylaw."); Matthew F. Pawa & Benjamin A. Krass, Behind the Curve:The National Media's RepoSing on Global Warming, 33 B.C. ENVTL.AFF. L. REV. 485, 487-88 (2006) ("Because of its flexibility,common law nuisance continues to play a vital role in complementingstatutory environmental enforcement tools...."); J.B. Ruhl, Farms,Their Environmental Harms, and Environmental Law, 27 ECOLOGY L.Q. 263,315 (2000) ("It has often been said that the statutory form ofmodern environmental law is built on the backbone of the common law ofnuisance.").

(13) See Bradley C. Karkkainen, Adaptive Ecosystem Management andRegulatory Penalty Defaults: Toward a Bounded Pragmatism, 87 MINN. L.REV. 943, 952 (2003) (noting that new governance principles can be usedto approach ecosystem management issues); CATHERINE LYALL, ECON. &SOC. RESEARCH COUNCIL, GENOMICS NETWORK, BRIEFING NO. 9, GOVERNINGGENOMICS: NEW GOVERNANCE TOOLS FOR NEW TECHNOLOGIES?, at 1-4, availableat http://www.genomicsnetwork.ac.uk/media/Governing%20Genomics.pdf(noting how new governance is altering the way in which pharmaceuticalregulation occurs).

(14) The "new governance" literature is vast. Foroverviews, see Scott Burris, Michael Kempa, & Clifford Shearing,Changes in Governance: A Cross-Disciplinary Review of CurrentScholarship, 41 AKRON L. REV. 1 (2008), and Orly Lobel, The Renew Deal:The Fall of Regulation and the Rise of Governance in Contemporary LegalThought, 89 MINN. L. REV. 342 (2004). For helpful applications toclimate change, see Richard J. Lazarus, Super Wicked Problems andClimate Change: Restraining the Present to Liberate the _Future, 94CORNELL L. REV. 1153 (2009), and Kelly Levin et al., Playing it Forward:Path Dependency, Progressive Incrementalism, and the "SuperWicked" Problem of Global Climate Change (July 7, 2007) (paperprepared for delivery to the Int'l Studies Ass'n ConventionChicago, Ill., Feb. 28-Mar. 3, 2007), available athttp://environment.yale.edu/uploads/publications/20071evinbernsteincashoreauld Wicked-Problems.pdf. For an insightfulapplication to environmental law more generally, see Eric W. Orts,Reflexive Environmental Law, 89 NW. U. L. REV. 1227 (1995).

(15) See Michael C. Doff & Charles F. Sabel, A Constitution ofDemocratic Experimentalism, 98 COLUM. L. REV. 267, 270 (1998)("[O]ur national affairs are too complex, diverse, and volatile tobe governed by lapidary expressions of the public will laws of Congress,administrative rules, judicial judgments---that indicate precisely howto dispose of most of the cases to which they will eventually beapplied.").

(16) Safety Appliance Acts, ch. 196, [section] 8, 27 Stat. 531, 532(1893) (codified as amended at 49 U.S.C. [section] 20304 (2006)). Theact imposed liability on railroad carriers for injury or death ofworkers if the carrier did not meet its statutory obligations;previously, such liability was assumed by the workers. See Kohn v.McNulta, 147 U.S. 238, 240-41 (1893).

(17) E.g., MacPherson v. Buick Motor Co., 111 N.E. 1050, 1051, 1053(N.Y. 1916) (holding that "[i]f the nature of a [car] is such thatit is reasonably certain to place and limb in peril when negligentlymade, it is then a thing of danger," and thus manufacturers areliable for negligence beyond the original owner).

(18) Nobuo Mimura et al., Small Islands, in INTERGOVERNMENTAL PANELON CLIMATE CHANGE, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION ANDVULNERABILITY 690 (2007) ("Owing to their high vulnerability andlow adaptive capacity, small islands have legitimate concerns abouttheir future...."); Jon Barnett & W. Neff Adger, ClimateDangers and Atoll Countries, 61 CLIMATIC CHANGE 321, 327 (2003) (due topotential impacts of climate change, "the physical basis ofnational sovereignty of the atoll countries . . is at risk"). Butsee Arthur P. Webb & Paul S. Kench, The Dynamic Response of ReefIslands to Sea-Level Rise: Evidence from Multi-Decadal Analysis ofIsland Change in the Central Pacific 72 GLOBAL & PLANETARY CHANGE234, 245 (2010) (concluding that, to date, there is "no evidence oflarge-scale reduction in island area" for Pacific atolls"despite the upward trend in sea level").

(19) See Steven C. Sherwood & Matthew Huber, An AdaptabilityLimit to Climate Change Due to Heat Stress, 107 PROC. NAT. ACAD. SCI.9552, 9554 (2010) ("We conclude that a global-mean warming ofroughly 7[degrees]C would create small zones where metabolic heatdissipation would for the first time become impossible, calling intoquestion their suitability for human habitation. A warming of11-12[degrees]C would expand these zones to encompass most oftoday's human population."). Influential economic modelswithin climate change policy often assume implausible adaptive capacityby human populations to a warming world, thereby keeping down climatechange damage estimates. William Nordhaus's DICE model, forinstance, estimates that only one half of world gross domestic productwould be lost at a temperature increase of 19[degrees]C, an increase farabove the human body's capacity to dissipate heat and avoidhyperthermia. See Frank Ackerman, Elizabeth A. Stanton & RamonBueno, Fat Tails, Exponents, Extreme Uncertainty: Simulating Catastrophein DICE, 69 ECOLOGICAL ECON. 1657, 1660 (2010).

(20) See JAMES R. HACKNEY, JR., UNDER COVER OF SCIENCE: AMERICANLEGAL-ECONOMIC THEORY AND THE QUEST FOR OBJECTIVITY 49-57 (2006).

(21) Robert W. Hahn, The Impact of Economics on EnvironmentalPolicy 15 (AEI-Brookings Joint Ctr. for Regulatory Studies, WorkingPaper 99-04, 1999), available athttp://www.regmarkets.org/admin/authorpdfs/redirect-safely.php?fname=../pdffiles/WP-99-04v2.pdf.

(22) Kenneth P. Green, Steven F. Hayward & Kevin A. Hassett,Climate Change: Caps vs. Taxes, ENVTL. POL'Y OUTLOOK, June 2007, at4, 5, available at http://www.aei.org/docLib/ 20070601_EPOg.pdf; Hahn,supra note 21, at 4.

(23) Lee Lane, The Green Movement and the Challenge of ClimateChange, ENVTL. POL'Y OUTLOOK, Feb. 2009, at 2, available athttp://www.aei.org/docLib/01-23914%20EEO%20 Lane-g.pdf.

(24) For instance, environmental damage models in a recent waterpollution rulemaking assumed that any level of juvenile fish mortalitycould be inflicted without ever affecting the underlying stock fromwhich new juveniles would emerge in future years. See Douglas A. Kysar,Fish Tales, in REFORMING REGULATORY IMPACT ANALYSIS 190, 195-97, 204(Winston Harrington et al., eds. 2009).

(25) See Deiter Helm, Climate-Change Policy: Why Has So Little BeenAchieved?, 24 OXFORD REV. ECON. POL'Y 211, 221-24 (2008).

(26) As Herman Daly puts it, "When increasingly vital facts,including the very capacity of the earth to support life, have to betreated as 'externalities,' then it is past time to change thebasic framework of our thinking so that we can treat these criticalissues internally and centrally." HERMAN E. DALY, BEYOND GROWTH:THE ECONOMICS OF SUSTAINABLE DEVELOPMENT 45 (1996). Likewise, if thefoundations of modern economic activity are giving rise to the"greatest .example of market failure we have ever seen,"NICHOLAS STERN, THE STERN REVIEW ON THE ECONOMICS OF CLIMATE CHANGE 1(2007), then the criteria for defining market "success" and"failure" should be interrogated.

(27) Jonathan Zasloff intriguingly straddles both economist andplaintiff groups by conceiving of the public nuisance suit as aneffective means to institute a "judicial carbon tax." Zasloff,supra note 3, at 1842-43.

(28) See Massachusetts v. U.S. Envtl. Prot. Agency, 549 U.S. 497(2007); Press Release, Earth Justice, Groups Sue to Force EPA Action onCalifornia Air Pollution (May 6, 2010),http://www.earthjustice.org/news/press/2010/groups-sue-to-force-epa-action- on-california-airpollution (last visited Feb. 13, 2011).

(29) See Zasloff, supra note 3, at 1864.

(30) 549 U.S. 497 (2007).

(31) Clean Air Act, 42 U.S.C. [section][section] 7401-7671q (2006).

(32) 549 U.S. at 528-32. Their endeavor was, of course, successful.

(33) See Zasloff, supra note 3, at 1828-29.

(34) W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S.CAL. L. REV. 671, 671 n.1 (2008) (alteration in original) (quotingWidlowski v. Durkee Foods, Div. of SCM Corp., 562 N.E.2d 967, 968 (Ill.1990)).

(35) See, e.g., Benito Muller, Niklas Hohne & ChristianEllerman, Differentiating (Historic) Responsibilities for ClimateChange, 9 CLIMATE POL'Y 593, 595 (2009); Zasloff, supra note 3, at1841 n.63. But see Eric A. Posner & Cass R. Sunstein, Global Warmingand Social Justice, REGULATION, Spring 2008, at 14, 19, available athttp://www.cato.org/pubs/regulation/ regv31nl/v31nl-3.pdf (positing alater date on the unsubstantiated claim that scientific consensusregarding climate change emerged "only recently").

(36) U.N. Framework Convention on Climate Change, Status ofRatification of the Convention,http://unfccc.int/essential_background/convention/status ofratification/items/2631.php (last visited Feb. 13, 2011)."Currently, there are 194 Parties (193 States and 1 regionaleconomic integration organization) to the United Nations FrameworkConvention on Climate Change." Id.

(37) U.N. Framework Convention on Climate Change, May 9, 1992, 1771U.N.T.S. 107, 31 LL.M. 849, 851 (1992).

(38) Id. at 854..

(39) This view is buttressed by comparing two pieces of U.S.legislation, the National Climate Program Act of 1978, 15 U.S.C.[section] 2902 (2006), which was almost entirely related to scientificresearch in pursuit of a better understanding of climate change and itspossible impacts, and the U.S. Energy Policy Act of 1992, Pub. L. No.102-486, 106 Stat. 2776, which specifies a goal of "stabilizationand eventual reduction in the generation of greenhouse gases." 42U.S.C. [section].13382(a)(2). On the other hand, if one takes expertviews, rather than congressional (in)action, as the key domesticindicator, the pertinent moment of concern may be much earlier, asnoted/infra text accompanying notes 277-78.

(40) GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE (WBGU), SOLVING THECLIMATE DILEMMA: THE BUDGET APPROACH 12 (2009), available athttp://www.wbgu.de/fileadmin/templates/dateien/veroeffentlichungen/sondergutachten/sn2009/wbgu_sn2009_en.pdf.

(41) Id. at 13.

(42) Id. at 15. For an effort to utilize the emissions budgetapproach to allocate national responsibility for climate changeaccording to different theories of appropriate state behavior, seeMuller, Hohne & Ellerman, supra note 35.

(43) GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE (WBGU), supra note40, at 27.

(44) A standard passenger vehicle in the United States emits theequivalent of roughly 5.2 metric tons of C[O.sub.2] per year.Calculations based on data from U.S. Envtl. Prot. Agency, Greenhouse GasEquivalencies Calculator,http://www.epa.gov/cleanenergy/energy-resources/ calculator.html (lastvisited Feb. 13, 2011).

(45) The average home in the U.S. emits the equivalent ofapproximately four metric tons of C[O.sub.2] per year per person. U.S.Envtl. Prot. Agency, Greenhouse Gas Emissions: In the Home,http://www.epa.gov/climatechange/emissions/ind-home.html (last visitedFeb. 13, 2011).

(46) Calculations based on data from Carbonfund.org, How WeCalculate Your Carbon Footprint,http://www.carbonfund.org/site/pages/carbon_calculators/category/Assumptions #TotalUSCO2 (last visited Feb. 13, 2011) (calculating 0.93 tons ofemissions for one roundtrip flight for one passenger from John F.Kennedy Airport in New York to San Francisco International Airport).

(47) GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE (WBGU), supra note40, at 19. Of course, a plethora of complications are being ignoredhere, including the choice of a 2[degrees]C guard rail which many regardas an inadequate level of protection, the possibility of reallocatingemissions budgets based on historical responsibility for the existingstock of greenhouse gas concentrations, and the need to account foroften dramatic disparities in emissions levels within nations.

(48) See id, at 17.

(49) See id.

(50) 162 N.E. 99 (N.Y. 1928).

(51) Id. (internal quotation marks omitted).

(52) Id. see also ld. at 100 ("The risk reasonably to beperceived defines the duty to be obeyed, and risk imports relation; itis risk to another or to others within the range ofapprehension.").

(53) William Blackstone defined "public nuisances" as"a species of offences against the public order and []economicalregimen of the state; being either the doing of a thing to the annoyanceof all the king's [s]ubjects, or the neglecting to do a thing whichthe common good requires." 4 WILLIAM BLACKSTONE, COMMENTARIES*167. The Second Restatement stresses that a defendant's conduct

 does not become a public nuisance merely because it interferes with the use and enjoyment of land by a large number of persons. There must be some interference with a public right. A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.

RESTATEMENT (SECOND) OF TORTS [section] 821B cmt. g (1979).

(54) See infra text accompanying note 169.

(55) 162 N.E. at 102 (Andrews, J., dissenting).

(56) Id.

(57) See id. at 103 ("Every one owes to the world at large theduty of refraining from those acts that may unreasonably threaten thesafety of others."). Despite failing to convince a majority inPalsgraf, Andrews continues to attract adherents. See, e.g., Smith v.Finch, 681 S.E.2d 147, 150 (Ga. 2009) ("[N]egligence may beestablished where it is shown that 'by exercise of reasonable care,the defendant might have foreseen that some injury would result from hisact or omission, or that consequences of a generally injurious naturemight have been expected.'"); Rallis v. Demoulas SuperMarkets, Inc., 977 A.2d 527, 532 (N.H. 2009) (observing that plaintiffmust show "that the defendant's conduct created a foreseeablerisk of harm; in other words, it was reasonably foreseeable that aninjury might occur because of the defendant's actions orinactions").

(58) See Palsgraf, 162 N.E. at 101 (majority opinion); see also ldat 105 (Andrews, J., dissenting).

(59) See John C.P. Goldberg, The Life of the Law, 51 SWAN. L. REV.1419, 1459 (1999).

(60) Palsgraf, 162 N.E. at 103-04 (Andrews, J., dissenting).

(61) See, e.g., Dilan A. Esper & Gregory C. Keating, Abusing"Duty," 79 S. CAL. L. REV. 265, 26566 (2006); John C.P.Goldberg & Benjamin C. Zipursky, The Restatement (Third) and thePlace of Duty in Negligence Law, 54 VAND. L. REV. 657, 736 (2001).

(62) Esper & Keating, supra note 61, at 266 (noting continuityof general duty language in different drafts of the RESTATEMENT (THIRD)OF TORTS: LIABILITY FOR PHYSICAL HARM).

(63) See Cardi & Green, supra note 34, at 722.

(64) See Goldberg & Zipursky, supra note 61, at 667-69.

(65) 482 N.E.2d 34 (N.Y. 1985).

(66) Id. at 37.

(67) Id. at 35-36.

(68) See Robert L. Rabin, The Torts History Scholarship of GarySchwartz.. A Commentary;, 50 UCLA L. REV. 461, 467-68 (2002).

(69) 443 P.2d 561 (Cal. 1968). The number of jurisdictions joiningCalifornia in the Rowland approach continues to grow. See, e.g., Koenigv. Koenig, 766 N.W.2d 635, 639 (Iowa 2009).

(70) See John C.P. Goldberg, The Constitutional Status of Tort Law:Due Process and the Right to a Law for the Redress of Wrongs, 115 YALEL.J. 524, 601-27 (2005); John C.P. Goldberg & Benjamin C. Zipursky,Shielding Duty: How Attending to Assumption of Risk,, AttractiveNuisance, and Other "Quaint" Doctrines Can ImproveDecisionmaking in Negligence Cases, 79 S. CAL. L. REV. 329, 334 (2006);see also Alexandra B. Klass, Tort Experiments in the Laboratories ofDemocracy, 50 WM. & MARY L. REV. 1501, 1565-67 (2009).

(71) See Jules L. Coleman, Doing. Away with Tort Law, 41 LOY.L.A.L. REV. 1149, 1152, 1158-59 (2008).

(72) See Gary T. Schwartz, Mixed Theories of Tort Law: AffirmingBoth Deterrence and Corrective Justice, 75 TEX. L. REV. 1801, 1801-02(1997).

(73) See Rabin, supra note 68, at 472-74.

(74) See Robert L. Rabin, The Historical Development of the FaultPrinciple: A Reinterpretation, 15 GA. L. REV. 925, 952-53 (1981).

(75) See id.; see also Gary T. Schwartz, The Beginning and thePossible End of the Rise of Modern American Tort Law, 26 GA. L. REV.601, 606 (1992); John Fabian Witt, Contingency, Immanence, andInevitability in the Law of Accidents, 1 J. TORT L. 1, 21 (2007).

(76) Settlement dynamics may well be affected, however, asAndrews's approach seems more likely to result in plaintiffsreaching discovery.

(77) The statement in the text has become an article of faith inclimate policy discussions. See, e.g., Nicholle Winters, Note, CarbonDioxide: A Pollutant in the Air,, but Is the EPA Correct that It Is Notan "Air Pollutant"?, 104 COLUM. L. REV. 1996, 1999 (2004)(discussing the EPA Fabricant Memo that "focuses on the fact thatcarbon dioxide does not directly cause harm but is a greenhouse gas thatcontributes to global warming"). An important caveat should benoted, however. C[O.sub.2] levels in densely populated, heavy emittingareas remain elevated due to a continuous stream of emissions, therebyforming a "dome" over the areas which, in turn, exacerbateslocal air pollution problems such as ground level ozone. See HealthyPlanet, Healthy People: Global Warming and Public Health Before the H.Select Committee on Energy Independence and Global Warming, 110th Cong.2-3 (2008) (statement of Mark Z. Jacobson), available athttp://www.stanford.edu/group/efmh/jacobson/Testimony0408%202.pdf(summarizing evidence). Thus, local greenhouse gas emissions can causehigher levels of local mortality and morbidity, notwithstanding thecommon wisdom that "[t]he fact that [greenhouse gases] mix globallyin the atmosphere means that hotspots are not a major concern."Jonathan B. Wiener, Radiative Forcing: Climate Policy to Break theLog]am in Environmental Law, 17 N.Y.U. ENVTL. L.J. 210, 215 (2008).

(78) Hunter & Salzman, supra note 3, at 1781.

(79) Id. at 1750.

(80) See Comer v. Murphy Oil USA, 585 F.3d 855, 859-60 (5th Cir.2009) ("The plaintiffs' putative class action asserts claimsfor compensatory and punitive damages based on Mississippi common-lawactions of... fraudulent misrepresentation, and civilconspiracy."); Complaint for Damages and Demand for Jury Trial at47-62, Native Vill. of Kivalina, 663 F. Supp. 2d 863 (N.D. Cal. 2009)(No. C 08-01138 SBA) (detailing civil conspiracy allegations). Forsupporting evidence, see NAOMI ORESKES & ERIK M. CONWAY, MERCHANTSOF DOUBT 169-215 (2010), and DAVID MICHAELS, DOUBT IS THEIR PRODUCT192-211 (2008).

(81) U.S. ENVTL. PROT. AGENCY, OPPORTUNITIES TO REDUCE GREENHOUSEGAS EMISSIONS THROUGH MATERIALS AND LAND MANAGEMENT PRACTICES 10 (2009),available at http://www.epa.gov/oswer/docs/ghg_land_and_materials_management.pdf.

(82) Id. at 11.

(83) It should be noted here that the Kivalina complaint limits itsscope to the direct emissions from defendants' activities (e.g.,oil exploration, pipeline construction, and facility operation) ratherthan from use of defendants' products by their customers. Complaintfor Damages and Demand for Jury Trial at 1, Native Vill. of Kivalina,663 F. Supp. 2d 863 (No. C 08-01138 SBA). In that respect, however, thecomplaint encompasses a much smaller potential share of overallgreenhouse gas emissions.

(84) See Richard C. Ausness, Public Tort Litigation: Public Benefitor Public Nuisance?, 77 TEMPLE L. REV. 825, 840-53 (2004) (reviewingpublic nuisance handgun litigation).

(85) See GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE (WBGU), supranote 40, at 27 (explaining that under the per capita emissions allowanceframework, individual persons would be budgeted emissions).

(86) Sec Donald G. Gifford, Public Nuisance as a Mass ProductsLiability Tort, 71 U. CIN. L. REV. 741, 748-49 (2003) (notingdisagreement among courts regarding "whether the plaintiff in apublic nuisance action must prove underlying tortious conduct by thedefendant.., or whether the existence of an objectionable conditionitself establishes tortious liability" (footnote omitted));Merrill, supra note 3, at 329 ("Nuisance law generally--of whichpublic nuisance is a subpart--has long oscillated between a'trespass' mode of analysis and a 'cost-benefit'mode of analysis.").

(87) See Merrill, supra note 3, at 329-30.

(88) For balancing tests, the Restatement (Second) of Tortstypically asks courts to weigh "the social value which the lawattaches to the interest," which is promoted or threatened bydefendant's behavior. RESTATEMENT (SECOND) OF TORTS [section] 292(1965) (emphasis added). Somewhat controversially, the Third Restatementhas de-emphasized this social valuation aspect of unintentional torts infavor of private market valuations. Sec Kenneth W. Simons, The HandFormula in the Draft Restatement (Third) of Torts: Encompassing Fairnessas Well as Efficiency Values, 54 VAND. L. REV. 901, 925-26 (2001).

(89) Cf. City of Cleveland v. Ameriquest Mortg. Sec., Inc., 621 F.Supp. 2d 513, 529 (N.D. Ohio 2009) (observing, among several reasons fordismissing a city's public nuisance suit against subprime mortgagelenders, that "federal government has enacted numerous laws andissued significant regulatory guidance specifically aimed at encouraginglending to traditionally underserved segments of the population").

(90) 582 F.3d 309 (2d Cir. 2009).

(91) Id. at 385 (emphasis added).

(92) SALVATORE LAZZARI, CONG. RESEARCH SERV., RL 30406, ENERGY TAXPOLICY: AN ECONOMIC ANALYSIS 1, 7 (2005).

(93) For example, Congress's lack of legislation on globalclimate change was one of the arguments EPA relied on to win over judgesat the court of appeals level in Massachusetts v. EPA. Sec EliseKorican, Massachusetts v. Environmental Protection Agency, Exploring theMerits of Greenhouse Gas Regulation, 28 J. NAT'L ASS'N ADMIN.L. JUDICIARY 193, 205 (2008).

(94) Michael Jacobs, Is It All Over for Climate Policy in theUnited States?, INSIDE STORY (Austl.), July 29, 2010, available athttp://inside.org.au/is-it-all-over-for-climate-change-policy-in-the-united-states/ (last visited Feb. 13, 2011).

(95) For the most notable exception and widely discussed report,see STERN, supra note 26, at 572. Much of the difference betweenmainstream and dissenting economic analyses is driven by basic modelingassumptions regarding such matters as economic and population growth,intergenerational ethical obligations, appropriate methods for valuinghuman life, and whether or how to incorporate catastrophic risks fromclimate change. Sec generally DOUGLAS A. KYSAR, REGULATING FROM NOWHERE7-10 (2010). Obviously, not all or even most of these matters arepeculiarly within the economics profession's domain of technicalexpertise.

(96) See FRANK ACKERMAN & ELIZABETH A. STANTON, THE SOCIAL COSTOF CARBON 1, 2, 5, 16 (2010), available athttp://sei-international.org/mediamanager/documents/Publications/Climatemitigation- adaptation/socialcostofcarbon_sei_20100401.pdf.

(97) Morgan McCue Sport, Comment, An Inconvenient Suit: Californiav. General Motors Corporation and a Look at Whether Global WanningConstitutes an Actionable Public Nuisance or a Nonjusticiable PoliticalQuestion, 38 CUMB. L. REV. 583, 590-95 (2008).

(98) See U.S. DEP'T OF ENERGY, FINAL RULE TECHNICAL SUPPORTDOCUMENT (TSD): ENERGY EFFICIENCY PROGRAM FOR COMMERCIAL AND INDUSTRIALEQUIPMENT: SMALL ELECTRIC MOTORS, app. 15A.2 at 2-3 (2010), available athttp://www1.eere.energy.gov/buildings/appliance_standards/commercial/pdfs/smallmotors_tsd/sem_finalrule_appendix15a.pdf. Figuresare reported in 2007 dollars.

(99) See ACKERMAN & STANTON, supra note 96, at 7-11.

(100) Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268(S.D.N.Y. 2005) (quoting the complaints by both the state plaintiffs andplaintiff Open Space Institute (OSI)). Plaintiffs in Connecticut v.American Electric Power Company actually name six electric powercorporations as defendants but two are related American Electric Powerentities.

(101) Sec id. (noting plaintiffs' allegations that nameddefendants represent one-quarter of U.S. electric power sector emissionswhich in the aggregate constitute ten percent of global emissions fromhuman activities).

(102) CONG. BUDGET OFFICE, NUCLEAR POWER'S ROLE IN GENERATINGELECTRICITY 25-26 (2008), available athttp://www.cbo.gov/ftpdocs/91xx/doc9133/05-02-Nuclear.pdf.

(103) Id. at 5.

(104) CCS technologies aim to capture C[O.sub.2] before it isreleased into the atmosphere from power plants and industrial facilitiesand then sequester it in geologic formations more or less permanently.For an overview of CCS and potential liability implications, secAlexandra B. Klass & Elizabeth J. Wilson, Climate Change and CarbonSequestration: Assessing a Liability Regime for Long-Term Storage ofCarbon Dioxide, 58 EMORY L.J. 103 (2008).

(105) CONG. BUDGET OFFICE, supra note 102, at 7-8 (using 2006dollars for most of the analysis).

(106) Combined cycle natural gas facilities produce roughly hall asmuch C[O.sub.2] as coal-fu-ed plants. U.S. Envtl. Prot. Agency, NaturalGas, http://epa.gov/cleanenergy/energy-andyou/affect/natural-gas.htm](last Visited Feb. 13, 2011). The cost differential between coal and gasfacilities can be as low as $5 per metric ton. CONG. BUDGET OFFICE,supra note 102, at 26; see also Hunter & Salzman, supra note 3, at1773 (distinguishing between existing and new coalfired power plants forpurposes of negligence analysis). Of course, with respect to newfacilities, plaintiffs face the additional problem of securing relieffor prospective injuries. See infra text accompanying notes 113-15.

(107) Credible estimates suggest a $60 per U.S. ton price is neededto make CCS technology cost competitive, a figure that, again, is wellbelow the interagency working group's estimate of the social costof carbon. See Dan Charles, Stimulus Gives DOE Billions forCarbon-Capture Project, 323 SCIENCE 1158 (Feb. 27, 2009).

(108) See supra text accompanying note 53.

(109) RESTATEMENT (SECOND) OF TORTS [section] 821B(1) (1979).

(110) See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS[section] 88, at 583-85 (4th ed. 1971) (listing "interferences withthe public health, as in the case of a hogpen, the keeping of diseasedanimals, or a malarial pond.., with the public comfort, as in the caseof bad odors, smoke, dust and vibration; with public convenience, as byobstructing a highway or a navigable stream, or creating a conditionwhich makes travel unsafe or highly disagreeable" (footnotesomitted)).

(111) RESTATEMENT (SECOND) OF TORTS [section] 821B(2)(a) (1979).

(112) Id. [section] 821B(2)(c).

(113) See, e.g., McFarlane v. City of Niagara Falls, 160 N.E. 391,391-92 (N.Y. 1928) (Cardozo, J.) ("Nuisance as a concept of the lawhas more meanings than one. The primary meaning does not involve theelement of negligence as one of the essential factors. One actssometimes at one's peril. In such circ*mstances, the duty to desistis absolute whenever conduct, if persisted in, brings damage to another.Illustrations are abundant. One who emits noxious fumes or gases day byday in the running of his factory may be liable to his neighbor thoughhe has taken all available precautions. He is not to do such things atall, whether he is negligent or careful." (citations omitted));Whalen v. Union Bag & Paper Co., 101 N.E. 805, 806 (N.Y. 1913)("Although the damage to the plaintiff may be slight as comparedwith the defendant's expense of abating the condition, that is nota good reason for refusing an injunction. Neither courts of equity norlaw can be guided by such a rule, for if followed to its logicalconclusion it would deprive the poor litigant of his little property bygiving it to those already rich.'). Generalizations of this sortare, of course, a hazardous activity. In addition to moderating thestandard of liability, courts have frequently limited the availabilityof injunctive relief in order to alleviate the seeminglyanti-utilitarian consequences of the strict property rights conception.The most widely discussed such case is Boomer v. Atlantic CementCompany, 257 N.E.2d 870, 875 (N.Y. 1970) (allowing vacation of aninjunction against the defendant if permanent damages were paid to theplaintiff by the defendant); a/though judicial ingenuity in the craftingof remedies to avoid large-scale economic dislocation long pre-datesBoomer. See, e.g., Louise A. Ha/per, Nuisance, Courts and Markets in theNew York Court of Appeals, 1850-1915, 54 ALB. L. REV. 301, 302 (1990);see also RESTATEMENT (SECOND) OF TORTS [section] 827 crut. b (1979)("The gravity of the harm, as objectively weighed.., may be foundso severe that in and of itself it requires compensation, regardless ofthe weight of the utility of the conduct." (emphasis added)).

(114) See, e.g., Cox v. City of Dallas, Tex., 256 F.3d 281, 290(5th Cir. 2001) (observing that "public nuisance law tends toimpose liability more often on the basis of strict liability [thannegligence]"); New York v. Shore Realty Corp., 759 F.2d 1032, 1051(2d Cir. 1985) (stating that liability for public nuisance exists underNew York law "irrespective of negligence or fault"); UnitedStates v. Hooker Chems. & Plastics Corp., 722 F. Supp. 960, 968(W.D.N.Y. 1989) ("[F]ault is not an issue, the inquiry beinglimited to whether the condition created, not the conduct creating it,is causing damage to the public." (quoting State v. SchenectadyChems., Inc., 459 N.Y.S.2d 971, 979 (N.Y. Sup. Ct. 1983))); ConcernedCitizens of Bridesburg v. City of Philadelphia, 643 F. Supp. 713, 726(E.D. Pa. 1986) ("At common law, neither individuals normunicipalities have the right to maintain for any period of timeactivities that constitute a public nuisance, irrespective of lack offault or due care."); State v. Fermenta ASC Corp., 608 N.Y.S.2d980, 985 (N.Y. Sup. Ct. 1994) ("[A] plaintiff in an action to abatea public nuisance is not required to demonstrate negligence or willfulconduct on behalf of the defendant.'); Commonwealth v. Barnes &Tucker Co., 319 A.2d 871, 883 (Pa. 1974) ("The absence of factssupporting concepts of negligence, foreseeability or unlawful conduct isnot in the least fatal to a finding of the existence of a common lawpublic nuisance."); Wood v. Picillo, 443 A.2d 1244, 1247 (R.I.1982) ("The essential element of an actionable nuisance is thatpersons ha ve suffered harm or are threatened with injuries that theyought not have to bear.'); Branch v. W. Petroleum, Inc., 657 P.2d267, 274 (Utah 1982) ("Unlike most other torts, [nuisance law] isnot centrally concerned with the nature of the conduct causing thedamage, but with the nature and relative importance of the interestsinterfered with or invaded."); RESTATEMENT (THIRD) OF TORTS[section] 20 cmt. c (2010) (noting that while the Restatement (Second)section elucidating nuisance liability "is explained in thelanguage of unreasonableness, that Section in essence rests on an ideaof strict liability: it is appropriate for the defendant to compensatethe plaintiff even though the defendant has in general behaved in areasonable way"). As always, exceptions exist: in Maryland, itappears that private nuisance liability is strict while public nuisancerequires a showing of unreasonableness. See Adams v. NVR Homes, Inc.,193 F.R.D. 243, 256 (D. Md. 2000). For an attempt to disentangle publicand private nuisance, both historically and practically, see RobertAbrams & Val Washington, The Misunderstood Law of Public Nuisance: AComparison with Private Nuisance Twenty Years After Boomer, 54 ALB. L.REV. 359 (1990).

(115) See Victor E. Schwartz & Phil Goldberg, The Law of PublicNuisance: Maintaining Rational Boundaries on a Rational Tort, 45WASHBURN L.J. 541, 542 (2006).

(116) 406 F. Supp. 2d 265, 270 (S.D.N.Y. 2005) ("Plaintiffsseek an order (i) holding each of the Defendants jointly and severalliable for contributing to an ongoing public nuisance, global warming,and (ii) enjoining each of the Defendants . . . by capping its emissionsof carbon dioxide and then reducing those emissions by a specificpercentage each year for at least a decade."); sec, e.g., Zasloff,supra note 3, at 1839.

(117) Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 332 (2dCir. 2009). A ruling, it must be stressed, that could be overturned bythe Supreme Court.

(118) Cf. Denise E. Antolini, Modernizing Public Nuisance: Solvingthe Paradox of the Special Injury Rule, 28 ECOLOGY L.Q. 755, 772 n.59(2001).

(119) See Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 223(Mich. Ct. App. 1999).

(120) See, e.g, Davis v. Georgia-Pacific Corp., 445 P.2d 481, 483(Or. 1968) (holding that "the social value of defendant'sconduct, its efforts to prevent the harm and other circ*mstances thattend to justify an intrusion cannot be considered" when assessingtrespass liability, but that such considerations do apply when assessingwhether injunctive relief should be afforded). Those courts that havemoved more squarely into the world of cost-benefit balancing have lessreason to be concerned about the prospect of an unpopular court-issuedinjunction, given that only activities deemed harmful on net will beunder threat of court cessation.

(121) See RESTATEMENT (SECOND) OF TORTS [section] 821C(1) (1979).

(122) See Raymond H. Brescia, On Public Plaintiffs and PrivateHarms: The Standing of Municipalities in Climate Change, Firearms, andFinancial Crisis Litigation, 24 NOTRE DAME J.L. ETHICS & PUB.POL'Y 7, 45 (2010).

(123) For instance, in California's public nuisance suitagainst the six largest automakers, the state sought compensation for

 billions of dollars in damages, including millions of dollars of funds expended to determine the extent, location, and nature of future harms and to prepare for and mitigate those harms, and billions of dollars of current harm to the value of flood control infrastructure and natural resources such as the ShOW pack and coastline that are vital to the well-being of the State.

Complaint for Damages and Declaratory Judgment at 13, California v.Gen. Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007) (No. C06-05755 MJJ),available at http://ag.ca.gov/newsalerts/ cms06/06-082_0a.pdf.

(124) See Richard O. Faulk & John S. Gray, Alchemy in theCourtroom? The Transmutation of Public Nuisance Litigation, 2007 MICH.ST. L. REV. 941, 1003-05 (2007) (criticizing a similar attempt in thecontext of lead paint litigation).

(125) 663 F. Supp. 2d 863 (N.D. Cal. 2009).

(126) Id. at 868-69.

(127) U.S. Army Corps of Engineers, Kivalina Relocation Master PlanFinal Report 06, http://www.poa.usace.army.mil/en/cw/Kivalina/Kivalina.html (last visited Feb. 12, 2011); Alaska Native Villages: VillagesAffected by Flooding and Erosion Have Difficulty Qualifying for FederalAssistance Before the S. Comm. on Appropriations, 108th Cong. 3 (2004)(statement of Robert A. Robinson, Managing Director for NaturalResources and Environment), available athttp://www.gao.gov/new.items/d04895t.pdf.

(128) See Complaint for Damages and Demand for Jury Trial at[paragraph] 46, Native Vill. of Kivalina v. ExxonMobil Corp., 663 F.Supp. 2d 863 (N.D. Cal. 2009) (No. 08-cv-01138-SBA), 2008 WL 594713[paragraph][paragraph] 187-88.

(129) Native Vill. of Kivalina, 663 F. Supp. 2d at 869.

(130) Complaint for Damages and Demand for Jury Trial at[paragraph] 4, 70, Native Viii. of Kivalina, 663 F. Supp. 2d 863 (No. C08-01138 SBA).

(131) Id. at 4.

(132) Native VIIi. of Kivalina, 663 F. Supp. 2d at 868 n. 1. Underboth public and private nuisance doctrine, one consideration weighing infavor of relief can be the simple distributive fact that defendants areable to bear the cost of compensation or abatement in the context ofsignificant harms. See RESTATEMENT (SECOND)OF TORTS [section][section]826(b), 829A (1979).

(133) Native Vill. of Kivalina, 663 F. Supp. 2d at 868.

(134) Id. at 874. In making the determination that balancing wouldbe required, the court cherry-picked seemingly supportive language fromcomment e to section 821B of the Second Restatement, but overlookednumerous other instances in the Second Restatement that support astricter approach. See infra text accompanying note 173. The districtjudge in California v. General Motors Corp, which was later voluntarilydismissed by California following its successful regulatory effortsagainst the auto industry, made a similar leap. 2007 WL 2726871, at *8(N.D. Cal., Sept. 17, 2007) ("Plaintiff's claire would requirethe Court to balance the competing interests of reducing global warmingemissions and the interests of advancing and preserving economic andindustrial development.").

(135) Native Vill. of Kivalina, 663 F. Supp. 2d at 876.

(136) See Jonathan H. Adler, Taking Property Rights Seriously: TheCase of Climate Change, 26 Soc. PHILANTHROPIC & POL'Y, Summer2009, at 296, 306.

(137) See id. at 299, 304.

(138) Vincent S. Oleszkiewicz & Douglas B. Sanders, The Adventof Climate Change Litigation Against Corporate Defendants, 35 Env'tRep. (BNA) 2365, 2369 (Nov. 12, 2004) ("Causation is the crucialissue for defendants because it win be the most difficult for aplaintiff to demonstrate .... ").

(139) Questions Surrounding the 'Hockey Stick'Temperature Studies: Implication for Climate Change Assessments HearingsBefore the Subcomm. on Oversight and Investigations of the H. Comm. onEnergy and Commerce, 109th Cong., 674 743 (July 27, 2006) (statement byRalph Cicerone, President, National Academy of Sciences).

(140) See Robert L. Rabin, Institutional and HistoricalPerspectives on Tobacco Tort Liability, in SMOKING POLICY: LAW,POLITICS, AND CULTURE 110, 112-13, 116 (Robert L. Rabin & Stephen D.Sugarman eds., 1993) (outlining the early strategies of tobaccolitigation).

(141) Jim Tankersley, U.S. Chamber of Commerce Seeks Trial onGlobal Warming, L.A. TIMES, August 25, 2009,http://articles.latimes.com/2009/aug/25/nation/na-climate-tria125 (lastvisited Feb. 13, 2011).

(142) Id. (quoting unnamed Chamber of Commerce officials).

(143) See, e.g., EPA's Denial of the Petitions to Reconsiderthe Endangerment and Cause or Contribute Findings for Greenhouse GasesUnder Section 202(a) of the Clean Air Act, 75 Fed. Reg. 49, 556, 49, 569(Aug. 13, 2010); see also Massachusetts v. EPA, 549 U.S. 497, 507 n.9,508-09 (2007).

(144) Jane Stapleton, The Two Explosive Proof-of-CausationDoctrines Central to Asbestos Claims, 74 BROOK. L. REV. 1011, 1012(2009).

(145) See Troyen A. Brennan, Causal Chains and Statistical Links:The Role of Scientific Uncertainty in Hazardous-Substance Litigation, 73CORNELL L. REV. 469, 471 (1988) ("[T]he causal concepts derivedfrom Newtonian physics are quite similar to those that inform the law,although they are no longer essential to science."). Academiccriticisms of the orthodox approach are legion. See Jonathan C. Mosher,A Pound of Cause for a Penny of Proof: The Failed Economy of an ErodedCausation Standard in Toxic Tort Cases, 11 N.Y.U. ENVTL. L.J. 531, 531n.1 (2003) (gathering sources).

(146) Benjamin C. Zipursky, Foreseeability in Breach, Duty, andProximate Cause, 44 WAKE FOREST L. REV. 1247, 1272 (2009).

(147) Consider the following discussion:

 Regulatory and advisory bodies ... Utilize a "weight of the evidence" method to assess the carcinogenicity of various substances in human beings and suggest or make prophylactic rules governing human exposure. This methodology results from the preventive perspective that the agencies adopt in order to reduce public exposure to harmful substances. The agencies' threshold of proof is reasonably lower than that appropriate in tort law, which "traditionally make[s] more particutarized inquiries into cause and effect" and requires a plaintiff to prove "that it is more likely than not that another individual has caused him or her harm."

Allen v. Pa. Eng'g Corp., 102 F.3d 194, 198 (5th Cir. 1996)(alteration in original) (quoting Wright v. Willamette Indus., Inc., 91F.3d 1105, 1107 (8th Cir. 1996)).

(148) See Mimura et al., supra note 18, at 83 (noting that climatechange attribution depends on a demonstration that "observedchanges are (1) unlikely to be due entirely to natural internal climatevariability; (2) consistent with estimated or modeled respouses to thegiven combination of anthropogenic and natural forcing; and (3) notconsistent with alternative, physically plausible explanations of recentclimate change").

(149) See, e.g., DeLuca v. Merrell Dow Pharm., Inc., 911 F.2d 941,957-59 (3d Cir. 1990); Manko v. United States, 636 F. Supp. 1419, 1434(W.D. Mo. 1986), aff'd in relevant part, 830 F.2d 831 (8th Cir.1987).

(150) DeLuca, 911 F.2d at 957-59; Manko, 636 F. Supp. at 1434. TheThird Restatement discourages the use of a formulaic relative riskfactor requirement at the general causation stage, preferring to allowplaintiffs to attempt to refine the evidence through "differentialetiology" and other methods at the specific causation stage,"[s]o long as there is adequate evidence of generalcausation." RESTATEMENT (THIRD) OF TORTS [section] 28 cmt. c(3)(2010). Whether the strong filter is applied at the general or thespecific causati0n stage, however, plaintiffs ultimately will need todemonstrate that their particular harm was more likely than not theresult of anthropogenic greenhouse gas emissions, unless they can availthemselves of an unusual doctrine such as the substantial risk factortest for causation. See infra text accompanying notes 321-22.

(151) Cf. Allen et al., supra note 3, at 1384 ("The keydifference between long-term, catastrophic impacts of GHG increases andmore mundane short-term impacts is that we might, in some instances, beable to say with confidence that some of these long-term impacts wouldnot have occurred in the absence of human influence on climate.").

(152) The cryosphere is "[t]he component of the climate systemconsisting of all snow and ice (including permafrost) on and beneath thesurface of the Earth and ocean." Mimura et al., supra note 18, at873.

(153) Id. at 84.

(154) Id. at 89.

(155) Id.

(156) Id. at 86 tbl.l.2 (noting decline in travel days in theAlaskan tundra from 220 to 130 days per year).

(157) Peter A. Stott et al., Human Contribution to EuropeanHeatwave of 2003, 432 NATURE 610, 610 (2004); see also Daithi A. Stoneet al., The Detection and Attribution of Human Influence on Climate, in34 ANS. REV. ENVIRON. & RESOURCES 1, 10-11 (Ashok Gadgil & DianaM. Liverman eds., 2009) (explaining methodology behind the heat wavestudy); Allen et al., supra note 3, at 1392 (observing that the heatwave researchem utilized a conservative assumption of normal probabilityassumptions when a fat-tall distribution may have been moreappropriate).

(158) See Doug Fraser, Cape Lobster Industry Faces Crisis, CAPE CODTIMES, June 13, 2010,http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20100613/NEWS/6130340/-1/NEWSMAP. Alternative explanations include overfishing,water pollution, invasive species, and disease. Through experimental andobservational means, scientists have determined that these explanationscannot account for recent drastic declines in lobster populations in thesouthern portion of their North Atlantic habitat. Importantly, theremaining suspect--warmer water temperatures--is not merely the lastexplanation standing, but a well-understood and studied driver of healthimpairment and reproductive decline among lobsters. Cf. Neal C. Stout& Peter A. Valberg, Bayes' Law, Sequential Uncertainties, andEvidence of Causation in Toxic Tort Caser 38 U. MICH. J.L. REFORM 781,889-90 (2005) ("Generally, the more alternative possible causesthere are for the injury, or the more likely an alternative possiblecause explains the injury, the more explanation (specificity) courtsshould require from the causation expert as to Why the subject agent isthe probable cause.").

(159) See Katy Human, CSI: NOAA Climate Scene Investigators,CLIMATEWATCH MAGAZINE, Oct. 23, 2009,http://www.climatewatch.noaa.gov/2009/articles/csi-noaa-climatescene-investigators.

(160) 585 F.3d 855 (5th Cit. 2009), panel opinion vacated en banc,607 F.3d 1049 (5th Cit. 2010).

(161) Id. at 863.

(162) See Thomas R. Knutson et al., Tropical Cyclones and ClimateChange, 3 NATURE GEOSCIENCES 157, 157 (2010) ("[I]t remainsuncertaln whether past changes in tropical cyclone activity haveexceeded the variability expected from natural causes. However, futureprojections based on theory and high-resolution dynamical modelsconsistently indicate that greenhouse warming will cause the globallyaveraged intensity of tropical cyclones to shift towards strongerstorms...."); Morris A. Bender 'et al., Modeled Impact ofAnthropogenic Warming on the Frequency of Intense Atlantic Hurricanes,327 SCIENCE 454, 454 (2010) (utilizing a hurricane-prediction model toproject a doubling of the frequency of category four and five storms bythe end of the twenty-first century).

(163) See Mimura et al., supra note 18, at 107; see also id. at 84(noting that, for many climate change impacts, "decades of data maybe needed in order to separate the response to [natural] climateoscillations from that due to longer-term climate change"). Arecent report in Nature, for instance, suggested that fears of malariaexpansion due to climate change are overstated, in light of the abilityof public-health measures such as improved access to medications andpreventative measures such as bed nets to outweigh the effects oftemperature on mosquito populations and bite frequency. See HeidiLedford, Malaria May Not Rise as World Warms, 465 NATURE 280, 280(2010).

(164) See infra text accompanying notes 321-22.

(165) See Hunter & Salzman, supra note 3, at 1793 ("[T]hestates' claims of public nuisance are not premised on any onespecific weather event, so they may not be required to show that climatechange has resulted in a specific hurricane or drought--just that,generally, over time climate change may have certain impacts (e.g.,declines in snowpack, more intense storms, and warmertemperatures).').

(166) Gifford, supra note 86, at 753.

(167) Agency for Health Care Admin. v. Associated Indus. of Fla.,678 So.2d 1239, 1253-55 (Fla. 1996).

(168) See, e.g., In re Lead Paint Litig., 924 A.2d 484, 494 (N.J.2007) ("[W]ere we to permit these complaints to proceed, we wouldstretch the concept of public nuisance far beyond recognition and wouldcreate a new and entirely unbounded tort antithetical to the meaning andinherent theoretical limitations of the tort of public nuisance.").

(169) See Jill D. Jacobson & Rebecca S. Herbig, Public NuisanceLaw: Resistance to Expansive New Theries, 8 MASS TORTS 3, 5 (A.B.A. Sec.Litig., Fall, 2009) (noting that plaintiffs have used public nuisancetheories to "evade" traditional causes of action).

(170) On the moral philosophical implications of what I am callingthe "consequentialist alibi," see Jonathan Glover & M. J.Scott-Taggart, It Makes No Difference Whether or Not I Do It, 49 PROC.OF THE ARISTOTELIAN SOC'Y, SUPPLEMENTARY VOLUMES 171, 171 (1975).

(171) See Stapleton, supra note 144, at 1013.

(172) See Illinois exrel. Scott v. City of Milwaukee, No. 72 C1253, 1973 U.S. Dist. LEXIS 15607, at *20-*22 (N.D. Ill. Nov. 1, 1973)("The correct rule would seem to be that any discharger whocontributes an aliquot of a total combined discharge which causes anuisance may be enjoined from continuing his discharge. Either that istrue or it is impossible to enjoin point dischargers.'), aff'din relevant part and rev'd in part sub nom.; Illinois v. City ofMilwaukee, 599 F.2d 151, 177 (7th Cir. 1979), vacated on other grounds451 U.S. 304, 332 (1981); RESTATEMENT (SECOND) OF TORTS [section] 840E(1965) (stating with respect to both private and public nuisance that"the fact that other persons contribute to a nuisance is not a barto the defendant's liability for his own contribution"); Coxv. City of Dallas, 256 F.3d 281, 292 n.19 (5th Cit. 2001) (gatheringsources in support of this claim). It is important to distinguish themultiple defendant problem, in which a substantial contribution islikely to be adequate to support some form of liability, from the morebasic problem of connecting plaintiffs' harm to the phenomenon ofhuman-induced climate Change. For the latter, courts are far less likelyto adopt a substantial risk contribution approach and will insteadretain traditional more-likely-than-not principles.

(173) See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076,1095 (5th Cir. 1973) ("Where several defendants are shown to haveeach caused some harm, the burden of proof (or burden of going forward)shifts to each defendant to show what portion of the harm he caused. Ifthe defendants are unable to show any reasonable basis for division,they are jointly and severally liable for the total damages.");Landers v. E. Tex. Salt Water Disposal Co., 248 S.W.2d 731, 734 (Tex.1952) ("Where the tortious acts of two or more wrongdoem join toproduce an indivisible injury, that is, an injury which from its naturecannot be apportioned with reasonable certainty to the individualwrongdoers, all of the wrongdoem will be held jointly and severallyliable for the entire damages and the injured party may proceed tojudgment against any one separately or against all in one suit.");RESTATEMENT (SECOND) OF TORTS [section] 875 (1965) ("Each of two ormore persons whose tortious conduct is a legal cause of a single andindivisible harm to the injured party is subject to liability to theinjured party for the entire harm."); id. [section] 433B(2)("Where the tortious conduct of two or more actors has combined tobring about harm to the plaintiff, and one or more of the actors seeksto limit his liability on the ground that the harm is capable ofapportionment among them, the burden of proof as to the apportionment isupon each such actor.'); David W. Robertson, The Common Sense ofCause in Fact, 75 TEX. L. REV. 1765, 1790-91 (1997) ("[M]ostAmerican courts will say that the plaintiff must apportion the separatedamages between or among the tortfeasors when that is feasible, but thatwhen apportionment is hot feasible the tortfeasors should be heldjointly and severally liable for the entire damage." (footnoteomitted)).

On the other hand, the Second Restatement also offers the followingcaveat:

 The possibility arises that there may be so large a number of actors, each of whom contributes a relatively small and insignificant part to the total harm, that the application of the rule [of joint and several liability and burden-shifting] may cause disproportionate hardship to defendants. Thus if a hundred factories each contribute a small, but still uncertain, amount of pollution to a stream, to hold each of them liable for the entire damage because he cannot show the amount of his contribution may perhaps be unjust.

RESTATEMENT (SECOND) OF TORTS [section] 433B cmt. e (1965).

(174) 582 F.3d 309, 349 (2d Cir. 2009).

(175) See Mandatory Greenhouse Gas Reporting, 74 Fed. Reg. 16,448,16,612-14 (Apr. 10, 2009) (to be codified at scattered sections of 40C.F.R.).

(176) The distinction belongs to ExxonMobil. Hunter & Salzman,supranote 3, at 1750 (quoting Press Release, Friends of the Earth,ExxonMobil's Contribution to Global Warming Revealed (Jan. 29,2004), http://www.foe.co.uk/resource/press_releases/exxonmobils_contribution_t_28012004.html).

(177) See Grimm, supra note 3, at 211; Maag, supra note 3, at210-11.

(178) Sindell v. Abbott Labs., 607 P.2d 924, 937 (Cal. 1980).

(179) See Edwards v. A.L. Lease & Co., 54 Cal. Rptr. 2d 259,262 (Cal. Ct. App. 1996) (market share liability not applicable to ABSpipe); Univ. Sys. of N.H. v. U.S. Gypsum Co., 756 F. Supp. 640, 656(D.N.H. 1991) (asbestos not a fungible product susceptible toapplication of market share liability); Mullen v. Armstrong World Indus.Inc., 246 Cal. Rptr. 32, 35-36 (Cal. Ct. App. 1988) (same).

(180) See Grimm, supra note 3, at 219-21.

(181) RESTATEMENT (SECOND) OF TORTS [section] 433 cmt. d (1965).See also id. [section] 834 cmt. d ("When a person is only one ofseveral persons participating in carrying on an activity, hisparticipation must be substantial before he can be held liable for theharm resulting from it.").

(182) See Grossman, supra note 3, at 29-31.

(183) See Pawa, supra note 3, at 10,238 (citing SANDRA GOODMAN ETAL., NATURAL RES. DEF. CTR., BENCHMARKING AIR EMISSIONS OF THE 100LARGEST ELECTRIC POWER PRODUCERS IN THE UNITED STATES-2002, at 3 (2004),available at http://www.nrdc.org/air/pollution/benchmarking/2002/benchmark2002_pt1.pdf).

(184) Id.

(185) 549 U.S. 497, 524 (1997). A similar defense of incrementalregulation and selective targeting of industries that are amenable togreenhouse gas regulation was accepted by the European Court of Justice,notwithstanding the argument of targeted industries that the principleof equal treatment under law had been violated. See Case C-127/07,Societe Arcelor Atlantique et Lorraine v. Premier ministre, 2009 O.J. (C44/13) 8, 8-9 (Court of Justice of the European Union 2008).

(186) The distinction belongs, of course, to the United States. SeeWorld Res. Inst., Contributions to Global Warming: Historic CarbonDioxide Emissions from Fossil Fuel Combustion, 1900-1999,http://earthtrends.wri.org/text/climate-atmosphere/map-488.html (lastvisited Feb. 13, 2011) (estimating U.S. contribution to carbon dioxideaccumulation between 1900-1999 as 30.3%, compared to a 27.796contribution by Europe, and a 12.2% contribution by China, India, andother developing parts of Asia combined).

(187) See World Res. Inst., Power Surge: Energy Use anti EmissionsContinue to Rise, http://www.wri.org/publication/content/8601 (lastvisited Feb. 13, 2011) (describing increasing fossil fuel use andC[O.sub.2] emissions in developing countries).

(188) E.g., Sindell v. Abbott Labs., 607 P.2d 924, 937 (Cal. 1980).Indeed, only the New York Court of Appeals seems to have recognized thatthe market share logic counsels against letting individual defendantsrebut the presumption of causal contribution by showing in anyparticular case that their products could not have been ingested byplaintiff's mother. Hymowitz v. Eli Lilly & Co., 539 N.E.2d1069, 1078 (N.Y. 1989) (refusing to permit defendant to exculpate itselfby showing that its product could not have caused plaintiffs injury).

(189) See supra text accompanying notes 174-75.

(190) Complaint for Damages and Declaratory Judgment at 2,California v. Gen. Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007) (No.C06-05755 MJJ), available athttp://ag.ca.gov/newsalerts/cms06/06-082_0a.pdf.

(191) Cf. Daniel Sperling et al., The Price of Regulation, 25ACCESS, Fall 2004, at 9, 9-16, available athttp://www.uctc.net/access/access25.pdf (exploring costs, effects, andbackground of regulatory schemes including those relating to emissioncontrols).

(192) See Robert L. Rabin, Enabling Torts, 49 DEPAUL L. REV. 435,449-50 (1999) (describing partially successful class action suit byairline flight attendants against tobacco manufacturers for secondhandsmoke injuries).

(193) Cf. Jiahua Pan, Jonathan Phillips & Ying Chen,China's Balance of Emissions Embodied in Trade: Approaches toMeasurement and Allocating International Responsibility, 24 OXFORD REV.ECON. POL'Y 354, 371 (2008) (estimating a thirty percent reductionin attributed emissions for China when greenhouse gas emissions"embodied" in traded goods are assigned to the country whereconsumption of such goods takes place).

(194) I am indebted to Michael Gerrard for this insight.

(195) JOHN REILLY ET AL., MIT JOINT PROGRAM ON THE SCI. &POLICY OF GLOBAL CHANGE, REPORT NO. 77, COMPARING GREENHOUSE GASES 1-2(2001), available athttp://dspace.mit.edu/bitstream/handle/1721.1/3568/MITJPSPGC_Rpt77.pdf.This little appreciated feature of climate change has depressingimplications for policy. Even if all anthropogenic greenhouse gasemissions stopped tomorrow, the atmosphere would not restore itspre-industrial concentration levels for one thousand years. See SusanSolomon et al., Irreversible Climate Change Due to Carbon DioxideEmissions, 106 PROC. NAT'L ACAD. SCI. 1704, 1705 (2009). On theother hand, the underappreciated role of short-lived greenhouse gasessuch as black carbon offers some reason for optimism, as the significantco-benefits to be obtained from their mitigation offers potential toovercome some of the deadlock in international climate negotiations. SeeFrances C. Moore & Michael C. MacCracken, Lifetime Leveraging: AnApproach to Achieving International Agreement and Effective ClimateProtection Using Mitigation of Short-Lived Greenhouse Gases, 1INT'L. J. CLIMATE CHANGE STRATEGIES & MGMT. 42, 49 (2009).

(196) David G. Owen, Bending Nature, Bending Law, 62 FLA. L. REV.569, 601 n.174 (2010).

(197) See DAVID G. OWEN, PRODUCTS LIABILITY LAW [sections] 8.7, at547-49 (2d ed. 2008). Judge Andrews in Palsgraf utilized a similar trickwhen he posited that the reasonable foreseeability of Helen Palsgrafsinjury from the defendant railroad's negligence in assistingfireworks-carrying passengers onto a train should be assessed"assum[ing] prevision of the explosion." 162 N.E. 99, 104-105(N.Y. 1928) (Andrews, J., dissenting).

(198) See Stapleton, supra note 144, at 1021 n.34 (2009)(discussing Thompson v. Smiths Shiprepairers (North Shields) Ltd.,[1984] 1 Q.B. 405 (U.K.)).

(199) Id.

(200) Id.

(201) Id.

(202) See, e.g., JOHN L. DIAMOND, LAWRENCE C. LEVINE & M.STUART MADDEN, UNDERSTANDING TORTS, at ix-xvii (3d ed. 2008); EDWARD J.KIONKA, TORTS, at vii-x (3d ed. 2002).

(203) See DIAMOND, LEVINE & MADDEN, supra note 202, at 215.

(204) Drew Shindell, Estimating the Potential for Twenty-FirstCentury Sudden Climate Change, 365 PHILANTROPIC TRANSACTIONS ROYALSOC'Y A 2675, 2675 (2007).

(205) Daniel A. Father, Tort Law in the Era of Climate Change,Katrina, and 9/11: Exploring Liability for Extraordinary Risks, 43 VAL.U. L. REV. 1075, 1097 & n.72 (2009). As Dan Father notes, the caseof "stigma damages," in which plaintiffs seek compensation fordiminution in property values on account of the fear of harm frompollution or other nuisances, also offers a useful analogy. Id. at 1097n.71.

(206) For the pioneering opinion adopting these two positions, seeAyers v. Township of Jackson, 525 A.2d 287, 297-304 (N.J. 1987).

(207) Daniel A. Farber, Adapting to Climate Change: Who Should Pay,23 J. LAND USE & ENVTL. L. 1, 2 (2007).

(208) Ruhl, supra note 6, at 418.

(209) Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979 (Utah1993).

(210) See Robin Kundis Craig, Adapting to Climate Change: ThePotential Role of State Common-Law Public Trust Doctrines 34 VT. L. REV.781, 808-09 (2010).

(211) Redland Soccer Club, Inc. v. Dep't of the Army, 696 A.2d137, 145 (Pa. 1997); see also Potter v. Firestone Tire & Rubber Co.,863 P.2d 795, 823 (Cal. 1993) (citing as relevant factors "therelative increase in the plaintiff's chances of developing adisease as a result of the exposure, when compared to (a) plaintiffschances of developing the disease had he or she not been exposed, andCo) the chances of the members of the public at large of developing thedisease").

(212) Redland Soccer Club, Inc. v. Dep't of the Army, 55 F.3d827, 846 n.8 (3d Cir. 1995), cert. denied, 516 U.S. 1071 (1996).

(213) See Faber, supra note 207, at 7, 19.

(214) See Hinton ex rel. Hinton v. Monsanto Co., 813 So.2d 827, 831(Ala. 2001); Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 849, 857 (Ky. 2002);see also Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424, 435-36,442 (1997) (rejecting an upfront lump sum payment of medical monitoringcosts to plaintiff with no symptoms because--among other reasons--thepayment might deprive those injured in the future of an adequateremedy).

(215) See City of Cleveland v. Ameriquest Mortg. Sec., Inc., 621 F.Supp. 2d 513, 526 (N.D. Ohio 2009); City of Chicago v. Beretta U.S.A.Corp., 821 N.E.2d 1099, 1143 (Ill. 2004). future harms. (216) Of course,as noted throughout this Part, that path faces numerous obstacles of itsown.

(216) See Miotke v. City of Spokane, 678 P.2d 803, 817, 821-22(Wash. 1984) (upholding issuance of injunction against future waterpollution discharges where plaintiffs adequately demonstrated present,albeit relatively minor injuries), overruled on other grounds by BlueSky Advocates v. State, 727 P.2d 644, 648-49 (Wash. 1986).

(217) See BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW 74 (1984);see also WITT, supra note 7, at 139-40 ("Statistical thinking is aremarkably recent development in Western thought. The word'statistics' itself, which derives from the word'state' and describes the science of gathering facts bearingon the condition of the state, did not appear in English until the lateeighteenth century.").

(218) Indeed, the effort by tort jurists, labor organizers,business managers, and others to grapple with the industrial-accidentcrisis might be said to have instigated the transformation. See WITT,supra note 7, at 5 (observing that "the industrial-accident crisisintroduced to the American legal system new ideas and institutionsorganized around risk, security, and the actuarial categories ofinsurance--ideas and institutions that to this day remain at the heartof much of our law").

(219) See ACKERMAN, supra note 217, at 52 ("Instead of siftingthe facts in search of the cause of the trouble, the lawyer-economisturges a conception of causation that recognizes how a multiplicity offactors, operating over a lengthy period of time, contribute to ourlegal discontents.").

(220) See id

(221) See, e.g., Goldberg, supra note 70, at 596; John C.P.Goldberg, Rethinking Injury and Proximate Cause, 40 SAN DIEGO L. REV.1315, 1315-16 (2003); Goldberg & Zipursky, supra note 70, at 344;Goldberg & Zipursky, supra note 61, at 736; Benjamin C. Zipursky,Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 754 (2003);Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts,51 VAND. L. REV. 1, 98 (1998). In addition to the neo-traditionalists,mention also must be made of corrective justice theorists who have longargued that instrumentalist welfarism does not provide a satisfactorypositive or, in the case of some authors, normative account of tort law.See, e.g., JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENSE OF APRAGMATIST APPROACH TO LEGAL THEORY 27-28 (2001); JULES L. COLEMAN,RISKS AND WRONGS 198 (1992); ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY,AND THE LAW 24 (1999); ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 4-5(1995); Jules L. Coleman, The Practice of Corrective Justice, inPHILOSOPHICAL FOUNDATIONS OF TORT LAW 53, 72 (David G. Owen ed., 1995);Arthur Ripstein & Benjamin C. Zipursky, Corrective Justice in an Ageof Mass Torts, in PHILOSOPHY AND THE LAW OF TORTS 214, 245 (Gerald J.Postema ed., 2001); Jules L. Coleman, The Structure of Tort Law, 97 YALEL.J. 1233, 1240-41 (1988) (reviewing WILLIAM M. LANDES & RICHARD A.POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987) and STEVEN SHAVELL,ECONOMIC ANALYSIS OF ACCIDENT LAW (1987)); Stephen R. Perry, The MoralFoundations of Tort Law, 77 IOWA L. REV. 449, 450 (1992); Ernest J.Weinrib, Understanding Tort Law, 23 VAL. U. L. REV. 485, 525 (1989).

(222) See Schwartz, supra note 72, at 1834.

(223) KYSAR, supra note 95, at 21-23.

(224) See Ind. Harbor Belt R.R. Co. v. Ann Cyanamid Co., 916 F.2d1174, 1179-81 (7th Cir. 1990).

(225) See Jon D. Hanson & Douglas A. Kysar, AbnormallyDangerous: Inequality Dissonance and the Making of Tort Law, 45 VAL. U.L. REV. (forthcoming 2011).

(226) See Hazardous Materials: Enhancing Rail Transportation Safetyand Security for Hazardous Materials Shipments, 73 Fed. Reg. 72, 182,72, 191 (Nov. 26, 2008) (to be codified at 49 C.F.R. pts. 172, 174)(detailing reasons why conventional cost-benefit analysis cannot beapplied to homeland security rail safety regulations, includingdifficulty of assessing the risk and consequence of terrorist action).

(227) See generally PRESIDENT'S CANCER PANEL, U.S. DEP'TOF HEALTH & HUMAN SERVS., REDUCING ENVIRONMENTAL CANCER RISK: WHATWE CAN DO NOW (2010), available athttp://deainfo.nci.nih.gov/advisory/pcp/annualReports/pcp08-09rpt/PCP-Report-08-09_508.pdf (discussing the effect of variousenvironmental risk factors on cancer rates). The fact that the"benefits" side of an activity's balance sheet might alsohave uncertainties and overlooked systemic dynamics simply underscoresthe limitation of partial equilibrium efficiency analysis in the face oflarge-scale harms that are Connected to foundational technologies andactivities. Unable to trace costs and benefits through to a systemicresting point--and unable to agree upon a neutral value metric forassessing their weight--we instead rely on unarticulated assumptionsabout the valence and magnitude of uncounted costs and benefits. Seegenerally KYSAR, supra note 95, at 73-74 (discussing the relative easeof identifying toxicity effects on one species, but the difficulty inusing nonlinear, dynamic factors and the irreducible uncertainty of suchanalyses).

(228) See also James M. Anderson, The Missing Theory of VariableSelection in the Economic Analysis of Tort Law, 2007 UTAH L. REV. 255(2007) (discussing the variability of inputs in assessment ofnegligence).

(229) See U.S. ENVT. PROT. AGENCY, INVENTORY OF U.S. GREENHOUSE GASEMISSIONS AND SINKS: 1990-2008, at ES-1 to -2, ES-7 to -15 (2010).

(230) Even on this score, the partial equilibrium approach facesinsuperable obstacles. See R.G. Lipsey & Kelvin Lancaster, TheGeneral Theory of Second Best, in 24 REV. ECON. STUD. 11, 11-12 (1956).As anyone who has climbed an actual mountain knows, the surest route tothe top is not the one that ascends with every step.

(231) The analogy could be extended: "Will this mountain offerthe most inspirational view? How many of us will fit at the top? Is thetop really a cliff?"

(232) See WITT, supra note 7, at 7-8.

(233) See id. at 13.

(234) Id. at 64-65.

(235) See id. at 69.

(236) See id at 44.

(237) Id. at 2-3.

(238) Id at 144.

(239) 111 N.E. 1050 (N.Y. 1916).

(240) See WITT, supra note 7, at 208.

(241) William L. Prosser, The Assault Upon the Citadel (StrictLiability to the Consumer), 69 YALE L.J. 1099, 1100 (1960).

(242) See William L. Prosser, Palsgraf Revisited, 52 MICH. L. REV.1, 13-14 (1953) ("A little more than a century ago Lord Abingerforesaw that "the most absurd and outrageous consequences, to whichI can see no limit, would ensue,' if it should ever be held thatone party to a contract was under any obligation to anyone but hisimmediate promisee. All the progeny of MacPherson ... have now given thelie to those words in the case of the manufacturer who sells his goods...." (footnotes omitted)).

(243) C.f. Judith S. Kaye & Kenneth I. Weissman, InteractiveJudicial Federalism: Certified Questions in New York; 69 FORDHAM L. REV.373, 399 (2000) (noting that certification of questions from federalcourt to state court is common in products liability cases becauseproducts liability is "dominated by state common law and arisesfrequently in federal diversity cases"),

(244) See ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OFINSTITUTIONS FOR COLLECTIVE ACTION 2-3 (1990) (tracing the intellectualorigins of the tragedy of the commons to Aristotle); see also ElinorOstrom, A Polycentric Approach for Coping with Climate Change 9 (TheWorld Bank, Policy Research Working Paper No. 5095, 2009), available athttp://papers.ssrn.com/so13/papers.cfm?abstract_id=1494833 ("Theapplicability of the conventional theory [of collective action] isconsidered to be so obvious by many scholars that few questions havebeen raised about whether this is the best theoretical foundation formaking real progress toward substantially reducing greenhouse gasemissions and taking other actions to reduce the threat of massive harmbrought about by climate change.").

(245) Posner & Sunstein, supra note 35, at 19.

(246) Keith N. Hylton, When Should We Prefer Tort Law toEnvironmental Regulation?, 41 WASHBURN L. J. 515, 533-34 (2002). Morespecifically, Hylton fuses Justice Scalia's approach to regulatorytakings jurisprudence with a public choice model of the politicalprocess. Just as regulators may limit private property use whenbackground nuisance principles would afford relief, courts may intervenethrough nuisance when the political process fails to do so. The recentSupreme Court case of Stop the Beach Renourishment, Inc. v. FloridaDepartment. of Environmental. Protection, 130 S. Ct. 2592 (2009), offersa challenging context to test Hylton's theory, as the majorityindicated keen interest in developing the concept of judicial takings.Id. at 2602. If both regulatory and judicial takings are defined interms of one another, which will provide a fulcrum for analysis? Likehis attempt in Lucas v. South Carolina Coastal Council, 505 U.S. 1003(1992), to find something "magical in the reasoning of judges longdead," id. at 1055 (Blackmun, J., dissenting), JusticeScalia's answer in Stop the Beach Renourishment is theunsatisfactory and historically inaccurate one that courts in thefounding era "had no power to 'change' the commonlaw." Stop the Beach Renourishment, 130 S. Ct. at 2606.

(247) Eric A. Posner & Cass R. Sunstein, Climate ChangeJustice, 96 GEO. L. J. 1565, 1592 & n. 122 (2008).

(248) Id. at 1594.

(249) A prime, albeit contested, historical example being theabolitionist movement. See Seymour Drescher, Capitalism and Slavery,After Fifty Years, in 18 SLAVERY & ABOLITION 212, 219 (1997)(reviewing literature on the ro1e of economic, as opposed to moralsuasion, factors in driving the British abolition of slavery).

(250) Glover & Scott-Taggart, supra note 170, at 184 (quotingSolzhenitsyn's Nobel lecture). Glover, it should be noted, goes onto critique Solzhenitsyn's moral romanticism. In a recent book, Idefend approaches such as Solzhenitsyn's for environmental law--noton the basis of their absolutism but on the basis that alternativeapproaches grounded exclusively in logic and empiricism simply cannotresolve many of the fundamental issues that lie at the heart of problemssuch as climate change. See KYSAR, supra note 95, at 71-73. Writers suchas Glover, Posner, and Sunstein essentially assume an absence of anymoral or legal duty and then try to identify logical conditions underwhich one might arise. Id. at 54-55. A different philosophical traditionbegins with the assumption that individual subjectivity does not existprior to ethical obligation. From this perspective, we come to bealready under a duty of care to respond to suffering. This traditiondeserves reconsideration, if only because it seems to offer motivationalresources in the climate change context that alternatives lack. See id.at 32-34.

(251) On tipping point scenarios, see the extremely usefuloverview, Timothy M. Lenton et al., Tippping Elements in theEarth's Climate System, 105 PROC. NAT'L. ACAD. SCI. 1786(2008), available athttp://www.pnas.org/content/105/6/1786.full.pdf+html.

(252) Stapleton, supra note 144, at 1024-26.

(253) See Kirsten Zickfeld et al., Expert Judgments About TransientClimate Response to Alternative Future Trajectories of RadiativeForcing, 107 PROC. NATL. ACAD. SCI. 12,451, 12,455 (2010), available athttp://www.pnas.org/content/early/2010/06/24/0908906107.full.pdf(reporting results of a survey of fourteen leading climate changescientists, the overwhelming majority of whom believe that a climatechange tipping point is more likely than not to occur before the year2200 under IPCC high emissions scenarios).

(254) Posner & Sunstein, supra note 247, at 1573. Their concernabout fit with distributive justice principles stems from the fact thatwealthy nations at present make only meager resource transfers tonon-wealthy nations. Thus, for Posner and Sunstein, "it remainspuzzling why wealthy nations should be willing to protect poor nationsfrom the risks of ... climate change ... while not being willing to givethem resources with which they can set their own priorities." Id at1585. The puzzle, however, perhaps lies in the assumption thatdistributive justice is only concerned with monetary resources.

(255) Id. at 1595; see also id. at 1572 ("blame mustordinarily be apportioned to individuals"); id. at 1602 (dismissing"collectivist habits of thinking"); David Weisbach,Responsibillty for Climate Change, By the Numbers 25 (U. Chi. Law Sch.,John M. Olin Law & Econ. Working Paper No. 448, 2009)("Standard notions of responsibility for bad acts usually rejectcollective responsibility; we have to assign responsibility toparticular individuals.").

(256) 467 F. Supp. 2d 676 (E.D. La. 2006).

(257) Id. at 678.

(258) See supra text accompanying notes 160-64 (discussing dimprospects for the Comer v. Murphy Oil plaintiffs in this regard).

(259) Barasich, 467 F. Supp. 2d at 679-80.

(260) Id. at 690.

(261) Id. at 693.

(262) Id. at 690, 693.

(263) Id. at 695.

(264) Id. at 679.

(265) Key Powers Reach Compromise at Climate Summit, BBC NEWS, Dec.19, 2009, http://news.bbc.co.uk/2/hi/europe/8421935.stm (last vistedFeb. 13, 2011).

(266) E.g., Mark Geistfeld, Negligence, Compensation, and theCoherence of Tort Law, 91 GEO. L.J. 585, 614-15 (2003).

(267) See In re Katrina Canal Breaches Consol. Litig., 647 F. Supp.2d 644, 697 (E.D. La. 2009) (finding that actions by the Army Corps ofEngineers over several decades in negligently constructing andmaintaining the Mississippi River Gulf Outlet proximately caused aportion of plaintiffs' harm, notwithstanding the much strongercausal contribution of Hurricane Katrina).

(268) See Mark Geistfeld, The Analytics of Duty: Medical Monitoringand Related Forms of Economic Loss, 88 VA. L. REV. 1921, 1927 (2002)("The relational nature of negligence, embodied in the element ofduty, corresponds to the behavioral assumption that potential injurers,like drivers, need to focus and prioritize their precautionary efforts,something that would be difficult to accomplish under a generic,nonrelational conception of negligence.").

(269) Zipursky, supra note 146, at 1267.

(270) D in this example is ExxonMobil Corp, the lead nameddefendant in Kivalina. For data supporting this characterization, seeRhett A. Butler, Corporations Agree to Cut Carbon Emissions,MONGOBAY.COM, Feb. 20, 2006,http://news.mongabay.com/2007/0220roundtable.html (last visited Feb 13,2011).

(271) E.g., Hall v. E.I. Du Pont de Nemours & Co., 345 F. Supp.353, 358 (E.D.N.Y. 1972).

(272) Barasich, 467 F. Supp. 2d 676, 694 (E.D. La. 2006).

(273) Id. at 695.

(274) E.g., Leslie Wayne, Companies Used to Getting Their Way, N.Y.TIMES, Dec. 4, 1998, at C8 ("'The oil companies lobby in avery coordinated way,' said a staff member for a Houseenergy-related committee.").

(275) E.g., Posner & Sunstein, supra note 247, at 1592.

(276) See supra text accompanying note 246.

(277) Complaint for Damages at and Demand for Jury Trial[paragraph] 162, Native Vill. of Kivalina, 663 F. Supp. 2d 863 (N.D.Cal. 2009) (No. C 08-01138 SBA).

(278) Id. at 34. (quoting COUNCIL ON ENVIRONMENTAL QUALITY, THEFIRST ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY 71, 90(1970)). The Council on Environmental Quality has made all of its annualreports available online in a "Proactive Disclosure ReadingRoom." See Council on Envtl. Quality, CEQ Proactive DisclosureReading Room, http://www.whitehouse.gov/administration/eop/ceq/foia/readingroom (last visited Feb. 13, 2011).

(279) JAMES HOGGAN & RICHARD LITTLEMORE, CLIMATE COVER UP: THECRUSADE TO DENY GLOBAL WARMING (2009); ORESKES & CONWAY, supra note80, at 85-86, 190-97; ERIC POOLEY, THE CLIMATE WAR: TRUE BELIEVERS,POWER BROKERS, AND THE FIGHT TO SAVE THE EARTH 33-41 (2010).

(280) John H. Cushman, Jr., Industrial Group Plans to BattleClimate Treaty, N.Y. TIMES, Apr. 26, 1998, at A1, available athttp://www.nytimes.com/1998/04/26/us/industrial-group-plans-to-battle-climate-treaty.html.

(281) See Owen, supra note 196, at 580.

(282) NAT'L RESEARCH COUNCIL, CLIMATE STABILIZATION TARGETS:EMISSIONS, CONCENTRATIONS, AND IMPACTS OVER DECADES TO MILLENNIA 2(2010), available at http://www.nap.edu/catalog.php?record_id=12877.

(283) See id. at 1 ("Emissions of Carbon dioxide from theburning of fossil fuels have ushered in a new epoch where humanactivities will largely determine the evolution of Earth'sclimate."); see also Johan Rockstrom et al., A Safe Operating Spacefor Humanity, 461 NATURE 472, 472 (2009) (listing, among globalenvironmental stressors nearing estimated "planetaryboundaries," climate change, biodiversity loss, nitrogen andphosphorous cycle alterations, ozone depletion, freshwater depletion,land use alteration, atmospheric aerosol loading, and chemicalpollution); Ruhl, supra note 6, at 394 ("[E]cologists now warn ofthe no-analog future--ecological variability unprecedented in thehistory of ecology, riddled with nonlinear feedback and feedforwardloops, previously unknown emergent properties, and new thresholds ofirreversible change.").

(284) See Owen, supranote 196, at 579, 607-08.

(285) Sheila Jasanoff, Technologies of Humility, 450 NATURE 33, 33(2007); Sheila Jasanoff, Technologies of Humility: Citizen Participationin Governing Science, 41 MINERVA 223, 227 (2004).

(286) Personal communication from Barton H. Thompson, Jr., RobertE. Paradise Professor in Natural Resources Law and Perry L. McCartyDirector, Woods Institute for the Environment, Stanford University(August 2009).

(287) John Witt has written that these twenty-first century risksexceed the grasp of the tort system:

 Diverse new risks, including nuclear disasters, global warming, genetically modified organisms, and any number of complex systems whose compromise might lead to catastrophic results, present challenges on a scale that seems to defy even the most innovative accident-law institutions on the contemporary scene. Because we lack aggregatable experience with such catastrophes, these new catastrophic risks move beyond the actuarial model that emerged in the work-accident experience. Statistical models of risk like those that animated developments in the law of accidents a century ago simply cannot be assembled in the absence of the requisite time-series data. In this regard, the federal compensation fund set up in the wake of the September 11, 2001 attack on the World Trade Center may be a harbinger of the kinds of departures from traditional practice that we may be compelled to adopt in a world of mass risks and postmodern technologies.

WITT, supra note 7, at 208-09 (footnote omitted). One claim of thisArticle, though, is that judges, and indeed all governmental actors,will be forced by the climate change problem to become comfortable withnonstandard risk assessment techniques. Id. at 209. As a result, commonlaw judges may see the virtue of including such techniques within thejudicial construction of reasonable foresight.

(288) See supra text accompanying notes 197-98.

(289) See generally, Robert W. James, Comment, Absolute Liabilityfor Ultrahazardous Activities: An Appraisal of the Restatement Doctrine,37 CALIF. L. REV. 269, 269-70 (1949) (discussing the idea of absoluteliability as applied to defendants engaged in abnormally dangerousactivities and other scenarios).

(290) Posner & Sunstein, supra note 247, at 1595 C[B]ecause thecorporate form itself is a fiction, and the shareholders today aredifferent from the wrongdoers yesterday, corporate liability cannot begrounded in corrective justice. Thus, it provides no analogy on behalfof corrective justice for the climate change debate." (footnoteomitted)).

(291) 60 F.2d 737 (2d Cir. 1932).

(292) Id. at 740 (holding that evidence of industry custom isrelevant, but not decisive, for purposes of assessing reasonableness inthe negligence context).

(293) See Kenneth S. Abraham, Custom, Noncustomary Practice, andNegligence, 109 COLUM. L. REV. 1784, 1796-97 (2009); Joseph W. Rand,What Would Learned Hand Do?: Adapting to Technological Change andProtecting The Attorney-Client Privilege on the Internet, 66 BROOK. L.REV. 361, 364-65 (2000).

(294) See James A. Henderson, Jr., Why Negligence Dominates Tort,50 UCLA L. REV. 377, 382-85 (2002).

(295) The argument in this section is fully laid out in an articlewith Jon Hanson. See Hanson & Kysar, supra note 225.

(296) WITT, supra note 7, at 47 ("[T]hose who articulatedclassical tort law faced an ongoing problem in elaborating theprinciples of a liberal approach to accidents for cases of nonnegligentharm to faultless victims.").

(297) That does not stop commentators from continuing to offer suchappeals. See Peter M. Gerhart, TheDeath of Strict Liability, 56 BUFF. L.REV. 245, 264, 273 (2008).

(298) See Losee v. Buchanan, 51 N.Y. 476, 484-85 (1873) (assertingthat industrialization is necessary for civilization and the advancementof mankind).

(299) Brown v. Collins, 53 N.H. 442, 1873 WL 4192, at *6 (1873);see also Losee, 51 N.Y. at 484-85 ("We must have factories,machinery, dams, canals and railroads. They are demanded by the manifoldwants of mankind, and lay at the basis of all our civilization. If Ihave any of these upon my lands, and they are not a nuisance and are notso managed as to become such, I am not responsible for any damage theyaccidentally and unavoidably do my neighbor. He receives hiscompensation for such damage by the general good, in which he shares,and the right which he has to place the same things upon hislands.").

(300) OLIVER W. HOLMES, JR., THE COMMON LAW 95 (Dover Publications1991) (1881).

(301) See Steven Shavell, Strict Liability Versus Negligence, 9 J.LEGAL STUD. 1, 17 (1980).

(302) Keith N. Hylton, The Economic Theory of Nuisance Law andImplications for Environmental Regulation, 58 CASE W. RES. L. REV. 673,677 (2008).

(303) Id. at 681.

(304) Id. at 683.

(305) See id at 679.

(306) With characteristic brilliance, Guido Calabresi long agopresaged not only the law and economics approach to activity leveleffects, but also its critique in just this fashion. See Guido'Calabresi & John T. Hirschoff, Toward a Test for StrictLiability Torts, 81 YALE L.J. 1055, 1063 n.29 (1972).

(307) See generally Jackson W. Adams, Cow 54, Where are You?Producer Liability and the National Animal Identification System, 23 J.CONTEMP. HEALTH L. & POL'Y 106, 128-30 (2006) (explaining thatAmerican courts adopted negligence as the standard for unintentionalharms to promote industry and its social benefits); Hylton, supra note302, at 681 (arguing that adopting strict liability where externalbenefits are greater than social costs is not optimal); Frona M. Powell,Trespass, Nuisance, and the Evolution of Common Law in Modern PollutionCases, 22 REAL EST. L.J. 182, 187 (1992) (describing the move away fromstrict liability in trespass and nuisance actions).

(308) See Lisa Heinzerling & Frank Ackerman, Law and Economicsfor a Warming World, 1 HARV. L. & POL'Y REV. 331, 344-46(2007).

(309) See supra text accompanying note 95; see infra textaccompanying notes 368, 370.

(310) Brennan, supra note 145, at 491.

(311) See Zickfeld, supra note 253, at 12,451, 12,453 fig.2.

(312) Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)(Posner, C.J.).

(313) DePass v. United States, 721 F.2d 203, 209 (7th Cir. 1983)(Posner, J., dissenting).

(314) See, e.g., Matsuyama v. Birnbaum, 890 N.E.2d 819, 828 &n.23 (Mass. 2008) (observing that "[t]he highest courts of at leasttwenty States and the District of Columbia have adopted the loss ofchance doctrine" and joining them).

(315) See Stapleton, supra note 144, at 1025.

(316) See Schwartz, supra note 75, at 671. One important exceptionis the Wisconsin Supreme Court's decision to allow its variation ofmarket share liability--the "risk-contribution theory"--to beapplied in the lead paint context. See Thomas ex rel. Gramling v.Mallett, 701 N.W.2d 523, 567 (Wis. 2005).

(317) See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL &EMOTIONAL HARM [section] 26 cmt. n (2010) ("To date, the courtsthat have accepted lost opportunity as cognizable harm have almostuniversally limited its recognition to medical-malpracticecases.").

(318) On the exceptionalism of asbestos litigation, see AnitaBernstein, Asbestos Achievements, 37 SW. U. L. REV. 691, 709 (2008).

(319) See, e.g., Glen O. Robinson, Multiple Causation in Tort Law:Reflections on the DES Cases, 68 VA. L. REV. 713, 750 (1982) ("Aslong as liability is proportionate to the risks created by a defendant,there is no reason why the Sindell liability rule cannot be applied tocases involving multiple and different risk-creating activities.");Allen Rostron, Beyond Market Share Liability: A Theory of ProportionalShare Liability for Nonfungible Products, 52 UCLA L. REV. 151, 215(2004) (arguing that courts should recognize that "fungibility isnot essential if liability can be allocated in a way that reasonablyaccounts for the differing levels of risk created by eachdefendant").

(320) But see Doe v. Cutter Biological, 852 F. Supp. 909, 913, 924(D. Idaho 1994) (declining to adopt market share or any otheralternative causation doctrine to aid plaintiff hemophiliacs who hadcontracted HIV from infusion of tainted Factor VIII clotting agent),appeal dismissed, 89 F.3d 844 (9th Cir. 1996) (dismissed upon death ofplaintiff).

(321) See Guido Calabresi, Concerning Cause and the Law of Torts:An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 71 & n.4(1975) ("There is a causal link between an act or activity and aninjury when we conclude on the basis of the available evidence that therecurrence of that act or activity will increase the chances that theinjury will also occur.").

(322) See Richard Delgado, Beyond Sindell: Relaxation ofCause-in-Fact Rules for Indeterminate Plaintiff, 70 CAL. L. REV. 881,895, 908 (1982); Glen O. Robinson, Probabilistic Causation andCompensation for Tortious Risk, 14 J. LEGAL STUD. 779, 781, 783 (1985);Robinson, supra note 319, at 739, 754; David Rosenberg, The CausalConnection in Mass Exposure Cases." A "Public Law" Visionof the Tort System, 97 HARV. L. REV. 849, 866, 928 (1984).

(323) 509 U.S. 579 (1993).

(324) See Robert J. Goodwin, Fifty Years of Frye in Alabama: TheContinuing Debate over Adopting the Test Established in Daubert v.Merrell Dow Pharmaceuticals, Inc., 35 CUMB. L REV. 231, 233-34(2004-2005).

(325) See, e.g., Margaret A. Berger, Upsetting the Balance BetweenAdverse Interests: The Impact of the Supreme Court's Trilogy onExpert Testimony in Toxic Tort Litigation, 64 LAW & CONTEMP. PROBS.,Spring/Summer 2001, at 289, 290 (noting judges are less likely to admitsome types of expert testimony under Daubert, allowing defendants anadvantage in toxic tort cases).

(326) See, e.g., Green Mountain Chrysler Plymouth Dodge Jeep v.Crombie, 508 F. Supp. 2d 295, 310-33 (D. Vt. 2007) (thoroughly reviewingand finding qualified to testify leading climate change scientists,including Dr. James Hansen).

(327) See Sophia I. Gatowski, et al., Asking the Gatekeepers: ANational Survey of Judges on Judging Expert Evidence in a Post-DaubertWorld, 25 LAW & HUM. BEHAV. 433, 443 (2001) (noting that seventyfive percent of surveyed judges believed that the Daubert ruling wasintended to guard against "junk science"). Further resultsfrom this survey give reason for pause, it should be disclosed: Whilejudges overwhelming support the active gatekeeper role established inDaubert and many overwhelmingly believe falsifiability and error rate tobe crucial criteria to apply in that role, less than eight percent andfour percent of judges, respectively, demonstrated basic understandingof what falsifiability and error rate actually mean in an open-responseitem. Id. at 444.

(328) Martha Chamallas, The Architecture of Bias: Deep Structuresin Tort Law, 146 U. PA. L. REV. 463, 469 (1998).

(329) Martha Chamallas, Vanished from the First Year: Lost Tortsand Deep Structures in Tort Law, in LEGAL CANONS 104, 108 (J. M. Balkin& Sanford Levinson eds., 2000)

(330) Chamallas, supra note 328, at 469.

(331) Chamallas, supra note 329, at 107; Chamallas, supra note 328,at 467.

(332) See Lucinda M. Finley, Female Trouble: The Implications ofTort Reform for Women, 64 TENN. L. REV. 847, 860 (1997).

(333) Id. at 858-59.

(334) Alaska Natives Class v. Exxon Corp., 104 F.3d 1196, 1197 (9thCir. 1997).

(335) Id at 1198.

(336) Id.

(337) Id.

(338) Id. (internal quotation omitted). Denise Antolini hascriticized the special injury rule in the public nuisance context moregenerally, arguing that the modern requirement that plaintiffsdemonstrate harm different in kind, rather than merely degree, from thepublic rests on a misconstrual of public nuisance's historicalorigins. See Denise Antolini, supra note 118, at 761-63.

(339) See Natural Res. Dep't, The Tulalip Tribes, TulalipSpring Chinook Run Boosts Cultural Pride,http://www.tulalip.nsn.us/htmldocs/nr062097.htm (last visited Feb. 13,2011).

(340) See Rebecca Tsosie, Indigenous People and EnvironmentalJustice: The Impact of Climate Change, 78 U. COLO. L. REV. 1625, 1635(2007) (summarizing threats posed by climate change to indigenouspeoples).

(341) These facts are drawn from a valuable University of BritishColumbia Faculty of Law teaching module. AVA MURPHY & SHI-LING HSU,CLIMATE CHANGE LITIGATION: INUIT V. THE U.S. ELECTRICITY GENERATIONINDUSTRY 5 (2008), available athttp://www.law:ubc.ca/files/pdf/enlaw/climatechange_04_24_09.pdf.

(342) Id.

(343) Id. at 5-7.

(344) Id at 5 (citing INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE,CLIMATE CHANGE 2007: SYNTHESIS REPORT 30 (2007), available athttp://www.ipcc.ch/pdf/assessment-report/ar4/syr/ ar4_syr.pdf).

(345) Id at 6.

(346) Id. at 6-7.

(347) Id. at 7.

(348) Id.

(349) Id. at 7, 9.

(350) Brad Morse, Australia and Canada" Indigenous Peoples andthe Law, 8 LEGAL SERVICE BULL. 104, 104-06 (1983).

(351) MURPHY & HSU, supra note 341, at 9.

(352) Id

(353) Id.

(354) Id

(355) See John G. Sprankling, The Antiwilderness Bias in AmericanProperty Law, 63 U. CHI. L. REV. 519, 556 (1996).

(356) J.B. Ruhl, Malting Nuisance Ecological, 58 CASE W. RES. L.REV. 753, 757 (2008) (emphasis removed); see also Stephen M. Johnson,From Climate Change and Hurricanes to Ecological Nuisances: Common LawRemedies for Public Law Failures?, 27 GA. ST. U. L. REV. (forthcoming),available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=1607861.

(357) Ruhl, supra note 356, at 768, 773.

(358) Id. at 773.

(359) See John Copeland Nagle, From Swamp Drainage to WetlandsRegulation to Ecological Nuisances to Environmental Ethics, 58 CASE W.RES. L. REV. 787, 799 (2008) (citing Cook v. Sullivan, 829 A.2d 1059,1067-68 (N.H. 2003)).

(360) Anderson v. State Dep't of Natural Res., 693 N.W.2d 181,192 (Minn. 2005). For discussion of this case, see Alexandra B. Klass,Bees, Trees, Preemption, and Nuisance: A New Path to Resolving PesticideLand Use Disputes, 32 ECOLOGY L.Q. 763, 803-05 (2005).

(361) 467 F. Supp. 2d 676, 678-79, 695 (E.D. La. 2006)

(362) Relatedly, scholars have argued that climate change willforce the common law public trust doctrine to become more broad andflexible in its conception of the public's entitlement toecological resources. See Craig, supra note 210, at 781; Mary ChristinaWood, Advancing the Sovereign Trust of Government to Safeguard theEnvironment for Present and Future Generations (Part I): EcologicalRealism and the Need for a Paradigm Shift, 39 ENVTL. L. 43, 63-64(2009).

(363) Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424, 432,435-36, 444 (1997); see also Mark Geistfeld, supra note 266, at 1934,1943.

(364) See Schwartz, supra note 75, at 677 (observing that :absent... a current injury, most courts have been reluctant to approverecoveries for fear of future diseases").

(365) See supra text accompanying note 317.

(366) See Douglas A. Kysar, Ecologic.. Nanotechnology,Environmental Assurance Bonding and Symmetric Humility, 28 UCLA J.ENVTL. L. & POL'Y (forthcoming 2010).

(367) See Jeffrey J. Rachlinski, The Psychology of Global ClimateChange, 2000 U. ILL. L. REV. 299, 307-13 (2000).

(368) On path dependence in technological and socioeconomicsystems, see Steven J. Davis et al., Future C[O.sub.2] Emissions andClimate Change from Existing Energy Infrastructure, 329 SCIENCE 1330,1333 (2010). On the significance of insurance-based reasoning to climatepolicy, see Martin L. Weitzman, On Modeling and Interpreting theEconomics of Catastrophic Climate Change, 91 REV. ECON. & STAT. 1(2009), and Martin L. Weitzman, A Review of the Stem Review on theEconomics of Climate Change, 45 J. ECON. LITERATURE 703 (2007).

(369) See Douglas A. Kysar, Discounting ... On Stilts, 74 U. CHI.L. REV. 119, 122-23 (2007).

(370) See Witt, supra note 75, at 19.

DOUGLAS A. KYSAR, Joseph M. Field '55 Professor of Law. YaleLaw School. I am thankful to Lewis & Clark Law School for theopportunity to present the lecture upon which this Article is based asthe 2010 Natural Resources Law Institute Distinguished Visitor. and tothe students and staff at Environmental Law for their outstandingeditorial work. I am grateful to Benjamin Ewing and Lindsey Trachtenbergfor excellent research assistance and substantive feedback, and to BruceAckerman, Deepa Badrinarayana, Michael Gerrard, Ryan Goodman, John Witt,and participants of faculty workshops at New York University School ofLaw and Loyola New Orleans University College of Law and the 2010University of Colorado Law School and Duke University School of LawClimate Change Law and Policy Works-in-Progress Symposium for valuablediscussion and comments on earlier drafts.

Figure 2: Sector-Based View of U.S. GHG Emissions (2006)Residential 5%Commercial 6%Agriculture 8%Industry 19%Electric Power Industry 34%Transportation 28%Note: Table made from pie chart.Figure 3: Systems-Based View of U.S. GHG Emissions (2006)Infrastructure 1%Provision of Goods 29%Provision of Food 13%Use of Appliance and Devices 8%Building HVAC and Lighting 25%Other Passenger Transport 9%Local Passenger Transport 15%Note: Table made from pie chart.