From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability

In this Article, we imagine a future, circa 2030, wherein the world has managed to avoid the worst climate change, yet has begun to experience considerable warming. Governments of all levels, especially at the state and provincial-level, are incurring unprecedented costs to mitigate the effects of climate change and adapt to new and uncertain climatic regimes. We consider how legislatures might respond to these imagined challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation of state and provincial legislation specifically designed to enable the recovery of the public healthcare costs of tobacco-related diseases in the 1990s. This Article delves into the legally-relevant differences and similarities between the tobacco industry and the fossil-fuel industry. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act, mirroring similar legislation passed to combat tobacco-related issues. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but is relevant to other jurisdictions grappling with the increasing costs of climate change mitigation and adaptation.