Beyond a Reasonable Doubt: Climate Change and Criminal Liability

In U.S. jurisprudence, the standard for conviction in a criminal proceeding is "beyond a reasonable doubt" -- at least 90% certain, in the conventional understanding. The prevailing standard in civil proceedings is the "preponderance of evidence" -- more likely true than not -- which implies greater than 50% likelihood. Applying these standards to successive reports by the Intergovernmental Panel on Climate Change (IPCC) yields a chilling conclusion: since 1990, the likelihood of carbon emitters' culpability for damage from climate change has escalated from the range of civil liability (above 50%) to the range of criminal liability (above 90%). What could this mean in practice? To grasp the potential stakes, we need look no further than this month's Atlantic Monthly. In The Real Roots of Darfur, Stephan Faris traces genocide in western Sudan to climate change:

The fighting in Darfur is usually described as racially motivated, pitting mounted Arabs against black rebels and civilians. But the fault lines have their origins in another distinction, between settled farmers and nomadic herders fighting over failing lands. Until the rains began to fail. [t]he nomads were welcome passers-through, grazing their camels on the rocky hillsides that separated the fertile plots. But with the drought, the farmers began to fence off their land--even fallow land--for fear it would be ruined by passing herds. In the late 1980s, landless and increasingly desperate Arabs began banding together to wrest their own dar [lands] from the black farmers. … More fighting in the 1990s entrenched the divisions between Arabs and non-Arabs.

So the stage was set for the genocidal violence that has afflicted Darfur since the current rebellion began in 2003. Faris concludes with these thoughts:

If the region's collapse was in some part caused by the emissions from our factories, power plants, and automobiles, we bear some responsibility for the dying. "This changes us from the position of Good Samaritans--disinterested, uninvolved people who may feel a moral obligation--to a position where we, unconsciously and without malice, created the conditions that led to this crisis," says Michael Byers, a political scientist at the University of British Columbia.

In light of our current knowledge about climate change, two edits to Professor Byers' statement seem appropriate: Shift "created" to the present tense, and strike the "un" from "unconsciously".How should we understand liability in this context? For now, there is no international forum in which the victims of climate change can initiate civil or criminal proceedings. And, at least for awhile, debates will continue about whether the Darfur drought and similar tragedies are caused by global warming or periodic variations in local conditions. However, the onslaught has only begun. According to an article in today's New York Times, an April IPCC report will predict widespread damage and dislocation, particularly in developing countries, as the climate changes and rising seas inundate coastal areas.As this process continues, the prevailing international standard for heavy emitters will almost certainly shift-- from today's "moral responsibility" to civil liability--and, unless credible mitigation is undertaken, ultimately to criminal liability. Does this sound far-fetched? In fact, the process of establishing liability is well under way. Writing in the Financial Times in 2002 Andrew Strauss, a professor of international law, emphasized the liability of the U.S. as the world's largest emitter.

when the invitation to appear in court arrives - no one should be surprised. America has led the way in showing the world how litigation can be a central mechanism for putting wrongs to right. It will simply be that unique American sense of justice coming home to its place of birth.

A 2003 article by Strauss in the Environmental Law Reporter (pdf) further explored legal options for suing the United States in international forums for global warming emissions. And in August, 2005, a coalition of environmental groups and city governments was granted legal standing to sue the US Export-Import Bank (Ex-Im) and the Oversees Private Investment Corporation (OPIC) for providing financial assistance to oil and other fossil fuel projects without first evaluating the projects' global warming impacts. Win or lose, other similar cases are sure to follow.The writing on the wall is clear: In February, 2007 the world's climate scientists, speaking through the IPCC, elevated the likelihood of human-induced climate change to over 90% -- the prevailing standard for guilt "beyond a reasonable doubt" in US courts. Sooner or later, international or national tort law will respond to this finding.