The potential of international ‘State-as-polluter’ litigation

Abstract

National fossil fuel companies, public utilities and other State entities are responsible for vast amounts of greenhouse gas emissions. The pollution of these State entities represents a substantial departure from the due diligence standards of international law. This article evaluates the promise of international climate litigation against State pollution sources, or international ‘State-as-polluter’ litigation, as a tool to overcome the gap between international norms and State conduct. The analysis shows that the conduct of State-controlled polluters may be attributable to States in certain situations. It further suggests that States can incur international responsibility for their failure to comply with heightened due diligence obligations in relation to State-controlled polluters.