A new legal framework for climate litigation

The climate crisis stands as the most pressing challenge of our generation, yet effective legal responses remain elusive. Political polarization and the influence of special interest groups have stalled meaningful regulatory action on both national and international levels. Climate litigation, largely based on tort principles, has also faced significant hurdles, yielding limited success.

In a new article published in the Georgetown Law Journal, scholars Profs. Yotam Kaplan from Hebrew University, Maytal Gilboa from Bar Ilan University, and Roee Sarel from the University of Hamburg, propose a novel legal framework that positions climate change within the doctrine of unjust enrichment. This approach represents a crucial step toward the potential adoption and success of unjust enrichment claims in climate litigation, providing promising and previously underdeveloped legal mechanisms for effective action.

The authors outline two key benefits of the unjust enrichment doctrine:

• Addressing Environmental Violations: When defendants engage in clear environmental violations, but the harms are difficult to quantify, concepts of wrongful enrichment and disgorgement of profit can offer effective remedies. This allows courts to act against those profiting from harmful practices even when the extent of the damage is hard to establish.
• Liability Without Wrongdoing: Defendants may not fit the traditional mold of wrongdoers necessary for establishing tort liability. Unjust enrichment concepts provide relevant legal responses in such cases, enabling accountability without the strict requirements of wrongdoing.

The doctrine of unjust enrichment, which focuses on gains rather than harms and relaxes the requirements for wrongdoing, is more compatible with the realities of climate litigation than tort law. The climate crisis involves abstract and dispersed harms that are difficult to identify, quantify, and attribute to specific actors. Moreover, many activities driving the climate crisis are not currently classified as wrongs or violations of specific legal standards, making tort law particularly unsuitable for addressing these issues.

By contrast, the challenges of climate litigation become less daunting when viewed through the lens of unjust enrichment. The processes contributing to climate change are unjust and yield significant profits for a select few.

From a policy standpoint, applying unjust enrichment concepts to address the climate crisis is a necessary step. An effective legal response must ensure that causing environmental harm carries no financial gain.