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THE PROOF OF SPECIFIC CAUSATION: AN INSURMOUNTABLE BARRIER TO IMPOSE ENVIRONMENTAL LIABILITY AND TORT LIABILITY FOR HARMS ARISING FROM CLIMATE CHANGE?
In this article I argue that, in order to overcome successfully the current impossibility of showing the causal link between greenhouse gas emissions released by one or more individualized agents and the environmental and/or personal damage for which reparation is sought –immediately attributable to specific climate changes and more remotely to global warming where their activity has an impact– it is not enough for the Chilean environmental courts and courts of justice to use judicial presumptions and shift the burden of proof to those actors, but they would have to modify radically their understanding of the foundation and aim of environmental liability and tort law, through the replacement of the traditional and deterministic idea of causation, based on but for test, by a probabilistic notion of it, supported by the climate attribution science and normative criteria of causation, whereby the emitters are held liable for harm that most likely did not inflict but at most contributed to cause.
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COMPARED RESOURSES RELATIVE TO THE DETERMINATION OF A CAUSAL LINK. AN ANALYSIS FOCUSED ON EVENTS RELATED TO HEALTH RESPONSABILY
The scientific certainty linked to technological development impacts on victims in this xxi century, particularly, in the accreditation of the causal link, which is always necessary to justify a tort action. Sensitive trials, many of them related to public health, largely shows the problem we intend to study. Comparative law has exposed this difficulty, arriving at solutions that show an interest into make flexible rules of evidence in favor of the proposed causality. We’ve found in our research the recourse to the solidarity responsibility, and to a lesser extent the proportionate responsibility, as well as the evidential presumptions by way of diverse mechanisms of causal inference. These solutions represent responses of legal adaptation which have been observed in order to provide guarantees to the damaged that, in a scientific doom scenario, has been affected twice: whether about their apparent damage, whether about the causal uncertainty that threatens her compensation.