Tort liability of climate polluters for climate-related monitoring and preventive costs

Last year I did a series of posts on whether climate polluters could be found legally liable for damage to hurricane victims (here's the last post with the summary of the others). Basically I thought that it would be hard to show liability with the current understanding of the science that limits our ability to tie climate change to particular harm, even for class action suits for a large class of victims.

A conversation I had recently helped me rethink one aspect of this, though. To some (controversial) extent, legal liability for medical monitoring is part of current tort law in the United States. An example: a company negligently exposes a community to low levels of a carcinogen. While the court may not conclude that any community member will necessarily incur cancer as a result, the community members could recover the costs of increased medical monitoring they will need to try and detect cancers as early as possible.

The same reasoning should apply to climate change, and it avoids much of the problem of tying pollution to a particular injury. If an inland community now has to monitor hurricanes because the increased intensity and sea level rise means they crossed the threshold from not-too-vulnerable, and become vulnerable-enough-to-be-worried, the US legal system might assign the liability to the people that caused it.

Prevention of damages could also be an assigned cost. If sea level rise means your property is now in a 100-year flood plain and you need insurance, that could also be a recoverable cost. Tracing causation for this should be particularly easy.

One interesting aspect of this is how it fits into the current adaptation-versus-mitigation debate. While I tend to strongly favor a mix that emphasizes mitigation, the legal approach I've described would fund adaptation.

The crucial thing to me though is the one thing I've missed in spotty following of this debate: who do the adaptationists think should pay for the costs? Here, making the polluters pay for the costs of adaptation through tort liability will by itself help promote mitigation, making fossil fuels more expensive in relation to non-polluting alternatives. That's all the better, so long as no one gets confused into thinking this even approaches a substitute for a regulatory solution. It's only a single tool in the toolkit.