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79 U. Colo. L. Rev. 701 (2008)
A Realistic Evaluation of Climate Change Litigation through the Lens of a Hypothetical Lawsuit

handle is hein.journals/ucollr79 and id is 707 raw text is: A REALISTIC EVALUATION OF CLIMATE CHANGE LITIGATION THROUGH THE LENS OF A HYPOTHETICAL LAWSUIT SHI-LING HSu* Several dozen cases that can be classified as climate change litigation have been filed worldwide, and legal scholars have already generated a considerable amount of writing on the phenomenon. The debate and scholarship has sometimes gotten ahead of itself, reflecting on the normative implications of outcomes that are still speculative at this point. This Article seeks to ground this debate by analyzing the actual legal doctrines that may serve as bases for liabil- ity, and seeks to make a realistic evaluation of the likelihood of success of these types of suits. Climate change litigation, in its various forms, raises issues of standing, choice of law, preemption, redress, causation, separation of powers, and in- ternational comity. Wrestling all of these issues down to an analytical conclusion is intractable; this Article seeks to make the problem more manageable by finding a plaintiff that would have a strong and viable claim for climate change damages, and finding a defendant that could most plausibly be sued for such damages. Analyzing the merits of such a suit and the possible forums in which the suit could be brought sheds considerable light on the more general phenomenon of climate change litigation. This Article shows that even with a strong plaintiff-the Inuit people of the Arctic region--and vulnerable defen- dants-U.S. electricity generating companies-the prospects of a successful lawsuit for climate change related damages are mixed. Current law seems to suggest that liability is slightly less probable than not, but certainly not inconceiv- able. However, the tenuous bases for liability in this hypo- thetical lawsuit, and the rarity of the characteristics of this plaintiff and these defendants that make this lawsuit plau- * Associate Dean, University of British Columbia Faculty of Law. This Arti- cle was written with the support of the Social Sciences and Humanities Research Council of Canada. The author gratefully acknowledges the help and comments of Amanda Frost, Bob Percival, Matthew Pawa and Ben Krass, and the research as- sistance of Rob Penkala and Anthony Purgas.

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