Climate law and governance structures evolve through different instruments, in international, regional and domestic law and policy. A significant mode of development is jurisprudential. Courts often make authoritative statements not only about the law on climate change but also about the underlying scientific evidence. At the heart of this growing field of climate jurisprudence are almost always legal concepts that were neither designed nor intended for the application in the context of a collective action problem. Therefore, judicial pronouncements on law’s core concepts reveal how the law is challenged by, and grapples with, climate change, especially where clarifying legislation is absent. Apart from filling legislative gaps and developing the law, courts also influence the societal perception of climate change, including its causes, impacts, urgency, and legal implications. Analysing these judgments structures, consolidates and develops the law on climate change.
This chapter provides a thorough analysis of some of the most significant cases on causation and attribution in a rapidly growing field of global climate jurisprudence. To structure the analysis, I situate the legal notion of attribution within an overarching concept of climate causality that comprises general causation, specific causation and attribution as a sequence of analytical steps. While general and specific causation are primarily concerned with identifying the factual relations between cause(s) and event(s), attribution adds a distinct normative dimension.
The approach in this chapter addresses the interdisciplinary challenge of applying law in the context of climate change, it connects attribution in law with event attribution and explains the inductive and deductive approaches used in scientific studies. The case law is selected from a range of different legal orders, for its contribution to advancing the concept of climate causality. To structure the vast number of relevant cases, the chapter offers a novel system based on thematic areas where jurisprudence emerges that shapes the normative context for causal explanations and attribution. Four areas of judicial engagement with climate change are identified as main sources for transferable arguments that could inform the reasoning on attribution: the determination of the scope of relevant emissions, the review of national climate targets and measures, the permissibility of emissions intensive infrastructure projects or activities, and courts’ readiness to use and review general (environmental) law concepts to develop climate litigation, thus expanding the normative lens.
Citation
Minnerop, P. Climate Causality: From Causation to Attribution. In M. Wewerinke-Singh, & S. Mead (Eds.), Cambridge Handbook on Climate Litigation. Cambridge University Press
