Climate Change as Unjust Enrichment
The climate crisis is the most significant challenge of our generation, with no satisfactory legal response in sight. Political polarization and influence from special interest groups have hindered effective regulatory action on both national and international fronts. Climate litigation through the court system, primarily based on tort principles, has also been largely unsuccessful.
In response to these legal failures, some courts and commentators have suggested that the law of unjust enrichment may provide the correct legal framework for addressing the climate crisis. This Article is the first to offer a general legal framework of climate change as unjust enrichment. This analysis is a necessary first step toward the adoption and success of unjust enrichment claims in climate litigation.
The Article provides a doctrinal and normative assessment of this legal innovation. First, doctrinally, we highlight some advantages of unjust enrichment doctrine as a vehicle for climate litigation. Mainly, a tort claim must be based on a clear showing of harm. This requirement is difficult to satisfy in climate litigation, which is based mostly on future, abstract, and highly dispersed harms. Conversely, a claim of unjust enrichment does not necessitate direct proof of harm but focuses on the unjust gains of the defendant. While the worst harms of climate change lie in the future, strong commercial actors benefit here and now.
Second, normatively, we highlight the compatibility of enrichment-based liability with the goals of climate litigation. If pollution remains profitable, it would be naïve to anticipate any significant progress in mitigating climate change. By making it possible to take away unjust gains, the law of unjust enrichment can offer a remedy that addresses this key feature of the crisis.
The Article also outlines the outer boundaries of liability in unjust enrichment and explains the conditions under which it should and should not apply. Defining a narrow scope of liability helps provide a tailored legal response, one that can be utilized by courts without overburdening defendants. Note that our goal is not to replace existing legal frameworks nor to offer unjust enrichment as a comprehensive and exclusive solution to the climate crisis. Rather, we aim to draw attention to this important option, hitherto understudied in legal scholarship and underutilized in practice, and to highlight some of its possible advantages.
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