CHR-NI-2016-0001 Statement of Resource Person, Dr Margaretha Wewerinke-Singh 8 greenhouse gas emissions. 32 Therefore, while we may all be responsible for climate change, some of us are more responsible than others. In light of this, the Model Climate Compensation Act sets out a wide range of potential defendants that might be responsible for large-scale greenhouse gas emissions, from fossil fuel companies to vehicle manufacturers.33 To ensure that it is effective in targeting those most responsible for climate change harm, however, the Model Act limits liability to those defendants that are “Major Emitters” in the sense that their impact on the global atmosphere is detectable. Specifically, the Model Act provides that: “An emitter will be considered a Major Emitter when the greenhouse gases for which they are directly or indirectly responsible under any or all of the categories described in subsection (1): (a) are of such a magnitude that they are globally or regionally detectable over a five-year period; or (b) over a five-year period cause a 0.1 ppm rise in global CO2e concentrations” (s. 8(2)). This approach—which focuses on assigning legal responsibility to those most responsible—is consistent with how common law has previously dealt with multiple polluters.34 E. Causation: what rules apply to determining whether a Defendant’s actions have caused a particular climate-related damage? ‘Causation’ is frequently considered one of the most significant barriers to successful climate damages litigation. Causation refers to the rules that determine whether a defendant’s actions are sufficiently connected to the alleged harm. In the context of climate change, causation presents difficulties because the relationship between the activity and the harm is not direct. Despite this, the Model Act does not introduce major changes to the common law rules of causation. It provides that “evidence that climate change has doubled the likelihood of that type of event occurring will be sufficient to show on a balance of probabilities, that the event has been caused by climate change” (s 10(1)). Towards determining this, the court can have regard to scientific and statistical information or modelling, historical experience and information derived from relevant studies (s. 10(1)). The Act also confirms that expenses reasonably incurred to adapt to, or prepare for, expected changes resulting from climate change, including costs not yet incurred, are expenses “caused by” climate change (s. 10(3)). While the Model Act adopts the existing principles of causation in common law, it is ultimately for the legislator to determine the applicable standard. The Kenya Climate Change Act is interesting insofar as it establishes a lenient standard of liability (s 23(3)), based on wrongful conduct rather than proof of actual loss or See eg N Oreskes and E Conway, Merchants of Doubt (Bloomsbury 2010). Recent revelations that Exxon Mobil’s own scientists warned the company as early as 1978 of the threats posed by climate change. See https://insideclimatenews.org/news/23092015/ExxonMobil-May-Face-Heightened-Climate-Litigation-Its-CriticsSay, accessed 1 December 2018. 33 This is consistent with the approach adopted in the United States Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S. Code § 9607 — Liability. 34 See A Gage, ‘Climate Change Litigation and the Public Right to a Healthy Atmosphere’, (July 2013) 24 J Env L & Prac 257, 275-279; see Wood v Waud, 3 Exch 748 at 775, per CJ Baron Pollock at 772. 32