Private Law Theory

ABSTRACT
This paper discusses the problem of what to do, if anything, about the profits of activities that drive climate change. Should benefits created ‘at the expense of’ climate change be ‘disgorged’ to those who missed out and now face the adverse costs of the activities from which these benefits were created? The paper sets out to clarify the basis for disgorgement duties in private law and normative ethics and, in doing so, distinguishes between ‘unjust enrichment’ and ‘wrongful enrichment’. It argues that the existence of the two tracks of unjustified enrichment is an established insight in the legal and ethical theory, but the significance of the distinction has yet to be fully explored in climate change justice. It is argued that neither approach generates a plausible case for legal recovery of unjust enrichments arising from climate change, but the wrongful enrichment track nonetheless serves as the basis of a powerful normative account of duties to disgorge profitable exploitations of the atmospheric commons.

Edward Page, Benefiting at the Expense of Climate Change in Mosquera and others (eds), Studies on Climate Ethics and Future Generations volume 6, Working Paper Series 2024:10–17.