New study introduces a novel legal framework for addressing climate change through the lens of unjust enrichment. The study proposes a shift away from traditional tort-based climate litigation towards an approach that focuses on the unjust profits gained from environmentally harmful activities. This unique perspective offers several advantages: it circumvents the challenges of quantifying abstract climate harms, allows for accountability without strict proof of wrongdoing, and provides a means to address environmental violations even when specific damages are difficult to establish. The framework's importance lies in its potential to overcome longstanding hurdles in climate litigation, offering a more flexible and potentially more effective legal tool for combating the climate crisis. By reframing the issue around unjust gains rather than provable harms, this research opens up new avenues for legal action and policy development in the urgent fight against climate change, making it a significant contribution to both legal scholarship and environmental advocacy.

[Hebrew University] 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.

The paper titled “Climate Change as Unjust Enrichment” is now available at The Georgetown Law Journal and can be accessed at https://www.law.georgetown.edu/georgetown-law-journal/in-print/volume-112/volume-112-issue-5-may-2024/climate-change-as-unjust-enrichment/

Researchers:

Yotam Kaplan¹, Maytal Gilboa², and Roee Sarel³

Institution:

1. Hebrew University Law School
2. Bar Ilan University, Faculty of Law
3. Institute of Law & Economics, University of Hamburg