When gist is mist: mismatches in small-scale climate change litigation

This article casts a fresh perspective on the relationship between tort law and environmental protection, in the context of climate change. It takes energy efficiency failings in domestic buildings as a case study, questioning whether the common law will support energy efficiency/climate change mitigation strategy. Using the conjoined notions of 'protected interests' and 'correlativity' as an explanatory framework, and focusing on damage, duty and remedies in negligence, it argues that common law remedies can contribute little to the enforcement of climate change mitigation measures. This is because, far from being small technical issues, any changes to negligence to pursue this particular policy objective would demand deep structural changes to the law of tort. Asserting that prospective claims such as these are instances of small-scale climate change litigation, it explores the implications of negligence's shortcomings as tools to contribute to the mitigation of climate change.