Climate Change as Unjust Enrichment
Ein Interview mit Herrn Prof. Dr. Roee Sarel zu seinem aktuellen Forschungsprojekt.
This project concerns the most pressing challenge that humanity is facing – climate change. While the scientific evidence strongly suggests that climate change will lead to immense harms, such as floods, fires, and extinction of certain wildlife, the endeavors to mitigate it have been rather unsuccessful. Because environmental regulations (national and international) are impeded by incentive problems and regulatory capture, some have turned to the courts for remedy, seeking damages from those who contribute most to climate change. Typically, these “climate litigation” lawsuits are based on tort law, which requires proof that (i) the defendant breached a duty of care, (i) the plaintiff incurred harm, and (iii) there is a causal link (but-if) between the harm and the breach. Alas, proving these elements is difficult in the context of climate change, because the harms mostly manifest in the future and are a result of a complex global warming process, to which many contribute. We set out to see whether the unjust enrichment doctrine would serve as a more suitable legal venue for climate litigation. The advantage of the unjust enrichment doctrine is its applicability not only in cases where a clear wrong is committed, but also when a wrong cannot be proven but the outcome is nonetheless unjust. We show that unjust enrichment would likely be an effective tool, enabling plaintiffs to target the unjust profits of polluters who benefitted at their expense. These profits are easier to quantify and tend to manifest much quicker than the harm, making them viable targets. Thus, our analysis suggests that the unjust enrichment doctrine is an appropriate tool here, improving both incentives and justice.
Our project was awarded the Young Scientists Grant of the German-Israeli Science Foundation (GIF) in 2022 and resulted in an article titled “Climate Change as Unjust Enrichment”, forthcoming in the highly-ranked Georgetown Law Journal. It has also featured on the Harvard Law School Forum on Corporate Governance.
In what context did the idea for your research project come about? What is particularly interesting about the topic?
Our project is engrained within the general context of sustainability, which is one of the flagship topics studied at the University of Hamburg. To improve sustainability, mitigating climate change is perhaps the most important step. The idea of targeting unjust climate profits has been proposed by some scholars before in general terms, but the doctrinal steps needed to translate the intuition into an actionable legal framework were, hitherto, missing. We developed this idea by differentiating between cases where a wrong occurred and cases where no wrong can be identified. We argue that unjust enrichment should apply more broadly when a wrong occurred, such as when defendants pollute unreasonably (gross-negligence) or mislead regulators, but subjected to certain filters if no wrong is identifiable. This would ensure that lawsuits would target those who truly make a substantial contribution to climate change while accumulating large profits (e.g., some oil companies) rather than just any person who makes minor contributions in their daily life (e.g., a single farmer).
The idea for this project came about through the collaboration between three scholars, all from the field of law and economics, but with different backgrounds. The first is Prof. Dr. Yotam Kaplan, a professor of law at Hebrew University of Jerusalem Law School (SJD Harvard Law School). He was awarded a European Research Council (ERC) grant to explore the use of unjust enrichment doctrine as a legal response to broad societal problems. The second is Dr. Maytal Gilboa, an Assistant Professor at Bar Ilan University Faculty of Law (PhD Tel Aviv University; Postdoc at the University of Toronto’s Faculty of Law). She teaches and researches tort law, unjust enrichment, private law remedies, and private law theories. The third is Prof. Dr. Roee Sarel, a Junior Professor at the Faculty of Law at UHH and the Institute of Law and Economics. The collaboration enabled us to pinpoint the advantages of the unjust enrichment doctrine, identify difficulties in the tort doctrine, and generate economic insights into applying the unjust enrichment doctrine in the climate context.
What is the social relevance of the research project? What can research achieve in this context?
We believe that this project has high social relevance. Not only does it open up a new path for the victims of climate change to pursue justice ex-post in their cases, but it also holds promise of improving deterrence of polluters ex-ante. We show how polluters who anticipate being sued based on unjust enrichment would be incentivized to abstain from major contributions to climate change, hopefully leading to a mitigation of the climate crisis.
Which future developments/changes would be desirable?
We hope that our project would have at least two major impacts. First, in accordance with our analysis, we hope that courts would be open to applying the unjust enrichment doctrine in climate litigation, taking into consideration that effects we identify in the article. Second, we hope to inspire further work on the use of unjust enrichment in the context of sustainability.
The project is a collaboration between three PIs: Yotam Kaplan, Maytal Gilboa, Roee Sarel.
The paper can be found here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4502750
The HLS Forum blog can be found here: https://corpgov.law.harvard.edu/2023/08/01/climate-change-as-unjust-enrichment/