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Social, Economic, and Ethical Concepts and Methods
3
Chapter 3
assignment of duties of compensation to currently living people for
their most recent emissions, even though many more people are caus-
ally responsible for the harmful effects of climate change. For future
emissions, the third limitation could be overcome through a climate
change compensation fund into which agents pay levies for imposing
the risk of harm on future people (McKinnon, 2011).
According to BPP, a person who is wrongfully better off relative to a
just baseline is required to compensate those who are worse off. Past
emissions benefit some and impose costs on others. If currently liv-
ing people accept the benefits of wrongful past emissions, it has been
argued that they take on some of the past wrongdoer’s duty of com-
pensation (Gosseries, 2004). Also, we have a duty to condemn injustice,
which may entail a duty not to benefit from an injustice that causes
harm to others (Butt, 2007). However, BPP is open to at least two
objections. First, duties of compensation arise only from past emissions
that have benefited present people; no compensation is owed for other
past emissions. Second, if voluntary acceptance of benefits is a con-
dition of their giving rise to compensatory duties, the bearers of the
duties must be able to forgo the benefits in question at a reasonable
cost.
Under CPP, moral duties can be attributed to people as members of
groups whose identity persists over generations (De-Shalit, 1995;
Thompson, 2009). The principle claims that members of a community,
including a country, can have collective responsibility for the wrongful
actions of other past and present members of the community, even
though they are not morally or causally responsible for those actions
(Thompson, 2001; Miller, 2004; Meyer, 2005). It is a matter of debate
under what conditions present people can be said to have inherited
compensatory duties. Although CPP purports to overcome the problem
that a polluter might be dead, it can justify compensatory measures
only for emissions that are made wrongfully. It does not cover emis-
sions caused by agents who were permissibly ignorant of their harm-
fulness. (The agent in this case may be the community or state).
The practical relevance of principles of compensatory justice is limited.
Insofar as the harms and benefits of climate change are undeserved,
distributive justice will require them to be evened out, independently
of compensatory justice. Duties of distributive justice do not presup-
pose any wrongdoing (see Section 3.3.4). For example, it has been
suggested on grounds of distributive justice that the duty to pay for
adaptation should be allocated on the basis of people’s ability to pay,
which partly reflects the benefit they have received from past emis-
sions (Jamieson, 1997; Shue, 1999; Caney, 2010; Gardiner, 2011).
However, present people and governments can be said to know about
both the seriously harmful consequences of their emission-generating
activities for future people and effective measures to prevent those
consequences. If so and if they can implement these measures at a rea-
sonable cost to themselves to protect future people’s basic rights (see,
e. g., Birnbacher, 2009; Gardiner, 2011), they might be viewed as owing
intergenerational duties of justice to future people (see Section 3.3.2).
3�3�6 Legal concepts of historical
responsibility
Legal systems have struggled to define the boundaries of responsibility
for harmful actions and are only now beginning to do so for climate
change. It remains unclear whether national courts will accept lawsuits
against GHG emitters, and legal scholars vigorously debate whether
liability exists under current law (Mank, 2007; Burns and Osofsky,
2009; Faure and Peeters, 2011; Haritz, 2011; Kosolapova, 2011; Kysar,
2011; Gerrard and Wannier, 2012). This section is concerned with moral
responsibility, which is not the same as legal responsibility. But moral
thinking can draw useful lessons from legal ideas.
Harmful conduct is generally a basis for liability only if it breaches
some legal norm (Tunc, 1983), such as negligence, or if it interferes
unreasonably with the rights of either the public or property owners
(Mank, 2007; Grossman, 2009; Kysar, 2011; Brunée etal., 2012; Gold-
berg and Lord, 2012; Koch etal., 2012). Liability for nuisance does not
exist if the agent did not know, or have reason to know, the effects
of its conduct (Antolini and Rechtschaffen, 2008). The law in connec-
tion with liability for environmental damage still has to be settled.
The European Union, but not the United States, recognizes exemption
from liability for lack of scientific knowledge (United States Congress,
1980; European Union, 2004). Under European law, and in some US
states, defendants are not responsible if a product defect had not yet
been discovered (European Commission, 1985; Dana, 2009). Some
legal scholars suggest that assigning blame for GHG emissions dates
back to 1990 when the harmfulness of such emissions was established
internationally, but others argue in favour of an earlier date (Faure and
Nollkaemper, 2007; Hunter and Salzman, 2007; Haritz, 2011). Legal
systems also require a causal link between a defendant’s conduct and
some identified harm to the plaintiff, in this case from climate change
(Tunc, 1983; Faure and Nollkaemper, 2007; Kosolapova, 2011; Kysar,
2011; Brunée etal., 2012; Ewing and Kysar, 2012; Goldberg and Lord,
2012). A causal link might be easier to establish between emissions
and adaptation costs (Farber, 2007). Legal systems generally also
require causal foreseeability or directness (Mank, 2007; Kosolapova,
2011; van Dijk, 2011; Ewing and Kysar, 2012), although some statutes
relax this requirement in specific cases (such as the US Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),
commonly known as Superfund. Emitters might argue that their contri-
bution to GHG levels was too small and the harmful effects too indirect
and diffuse to satisfy the legal requirements (Sinnot-Armstrong, 2010;
Faure and Peeters, 2011; Hiller, 2011; Kysar, 2011; van Dijk, 2011; Ger-
rard and Wannier, 2012).
Climate change claims could also be classified as unjust enrichment
(Kull, 1995; Birks, 2005), but legal systems do not remedy all forms of
enrichment that might be regarded as ethically unjust (Zimmermann,
1995; American Law Institute, 2011; Laycock, 2012). Under some legal
systems, liability depends on whether benefits were conferred without
legal obligation or through a transaction with no clear change of own-