By Kevin A. Gaynor, Benjamin S. Lippard, and Margaret E. Peloso

Since 2005, numerous plaintiffs have attempted to hold both the energy industry and vehicle manufacturers liable for the damages they have experienced and will experience as a result of climate change. Proceeding under common-law theories, particularly nuisance, these plaintiffs generally allege that the defendants they sue are major contributors to greenhouse gas emissions, which ultimately lead to climate change and a myriad of associated harms ranging from increased coastal erosion in Alaska and Massachusetts to decreased snowpack in California.

While the U.S. Environmental Protection Agency’s recent regulatory actions may preempt claims under federal common law, there is nothing in the Clean Air Act that prevents future tort claims under state law. Consequently, common-law climate change litigation is likely to continue in the coming years. This article addresses the challenges that common-law climate change plaintiffs will face in litigating their claims, particularly with respect to standing and justiciability, proof of causation, and apportionment of damages. Read the entire article here.