December 5, 2024 — A new legal framework that departs from traditional tort-based climate litigation ─ focusing instead on the unjust profits gained from environmentally harmful activities ─ is being proposed in a new study by Hebrew University of Jerusalem researchers.

According to the research published in the Georgetown Law Journal, this new perspective on unjust enrichment offers several advantages: First, it circumvents the challenges of quantifying abstract climate harms, and it allows for accountability without strict proof of wrongdoing. Lastly, it provides a means to address environmental violations, even when specific damages are difficult to establish

The escalating climate crisis is a significant generational challenge, 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 through the court system, which is primarily based on tort principles, has also been largely unsuccessful.

The doctrine of unjust enrichment, which focuses on unjust gains rather than harms and eases the requirements for proving wrongdoing, is more compatible with the realities of climate litigation than tort law for several reasons:

• The climate crisis involves abstract and dispersed harms that are difficult to identify, quantify, and attribute to specific actors.
• Many activities driving the climate crisis are not currently classified as wrongs or violations of specific legal standards, which makes tort law particularly unsuitable for addressing these issues.

From a policy standpoint, applying unjust enrichment concepts to address the climate crisis is a necessary step. Climate litigation challenges become less daunting when viewed through the lens of unjust enrichment, which shows the processes contributing to climate change are unjust and yield significant profits for a select few. An effective legal response must ensure that causing environmental harm carries no financial gain.

Prof. Yotam Kaplan, the Frieda & Solomon Rosenzweig Professor of Law at Hebrew University Law School, outlines 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, the concepts of wrongful enrichment and disgorgement of profit can be effective remedies. This allows courts to act against those profiting from harmful practices, even when the extent of damage is hard to establish.

Liability Without Wrongdoing: When defendants don’t fit the traditional mold of wrongdoers necessary for establishing tort liability, unjust enrichment concepts provide relevant legal responses that determine accountability without the strict requirements for proving wrongdoing.

Adoption of this alternative approach, utilizing unjust enrichment claims in climate litigation, promises to be a crucial step forward, allowing litigators to use this previously unrecognized legal mechanism for achieving effective regulatory action.

The paper, titled “Climate Change as Unjust Enrichment,” is now available in The Georgetown Law Journal and can be accessed here.

Researchers:

Yotam Kaplan¹, Maytal Gilboa², and Roee Sarel³

Institutions:

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