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University of Miami International and Comparative Law Review

Abstract

Fossil fuels and tobacco products share startling similarities. Both enjoy ubiquity, enable their users to keep pace with the ever-increasing demands of civilization, and choke the life out of those who partake and those who merely look on. The comparison extends to legal battles against their respective industries, as evidenced by a new wave of tort litigation in the federal courts of the United States. In a time where climate change was still establishing consensus, states took up the charge against tobacco companies who had successfully defended against private lawsuits over the deleterious health effects of tobacco. Those suits culminated in the Master Settlement Agreement, a Congressional compromise which preserved the tobacco industry while recompensing the injuries of and protecting citizens.

History may repeat itself as a mixture of public and private plaintiffs take to federal court to seek justice for climate damages including rising seas, oppressive weather, acid rain, and polluted air. These plaintiffs cite modern scientific consensus, which points unerringly to producers and emitters of greenhouse gases and carbon byproducts as the culprits. Even more addicting than tobacco, however, is the fossil fuel, and our civilization shows no sign of breaking the habit in the near future. Justice for these plaintiffs and for all affected parties—every human being and other living organism on this planet—may be reached in the United States by learning from the lessons of tobacco litigation. With the right outcome in this crucial climate, we may all yet breathe easier.

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