Company A reports that 95% of its carbon footprint sits in Scope 3; emissions from suppliers, logistics partners, and customers using their products. Who actually owns responsibility for that device’s carbon? The aluminum smelter in China? The assembly facility in Vietnam? The product designers who specified the materials? The end user charging it each night? Everyone says not fully mine while the atmosphere accumulates CO2 regardless of our accounting boundaries.
This goes beyond measurement; it is a fundamental question about how responsibility works when harm is joint, diffuse, and temporally separated from action.
Tort liability doctrines, which I’m studying in a completely different context, turned out to be unexpectedly illuminating frameworks for understanding why carbon responsibility remains so contested. Strict liability holds parties responsible for harm regardless of fault or intent; you caused it, you pay. Contributory negligence takes the opposite extreme if the victim shares any fault, they recover nothing. Pure comparative fault splits responsibility proportionally based on each party’s contribution without thresholds. Modified comparative fault adds cutoff points, say, if you’re more than 50% responsible, you pay everything, less than 50%, you pay nothing. These are not just legal technicalities. They are different philosophical models for allocating responsibility when multiple parties contribute to harm, and they expose exactly why carbon accountability systems keep failing.
The causation problem in carbon responsibility makes traditional legal frameworks look almost quaint. When a Peruvian farmer sues a German utility because melting glaciers threaten his village, courts recognized the conceptual validity, the utility’s historical emissions contributed 0.47% to global warming, therefore proportional responsibility for glacier melt makes logical sense. But establishing this required pioneering new global neighborhood principles precisely because traditional proximate cause doctrines assume spatial and temporal proximity that climate obliterates. Every emission traces through infinite chains the electricity powering a data center came from a grid mix including coal plants burning fuel mined by companies using equipment manufactured from steel produced in furnaces powered by more coal.
At what point does the chain break? Traditional “but-for” causation, the harm would not have occurred but for this action, becomes meaningless when no single actor’s emissions were necessary for any specific climate impact, yet all collectively sufficient.
This causation tangle is not abstract legal theory, it explains why carbon accounting remains practically unworkable at scale. The GHG Protocol’s Scope 3 guidance runs hundreds of pages trying to prevent double-counting across fifteen value chain categories, yet companies still report wildly inconsistent figures for comparable operations. When one tech company includes cloud services customers’ usage in Scope 3 while another draws boundaries differently, they are not being evasive, they are making implicit choices about modified versus pure comparative fault. The broader approach says we share proportional responsibility for all downstream impacts (pure comparative fault logic), while narrower boundaries say beyond certain thresholds of control, responsibility shifts entirely to others (modified comparative fault logic). Neither is objectively correct because the underlying question, where does joint causation end, has no natural answer.
Carbon pricing mechanisms embed these liability frameworks whether designers recognize it or not. Cap-and-trade systems impose strict liability on covered entities if you emit within the boundary, you need permits, period. No consideration of fault, intent, technological alternatives, or your contribution relative to others. Yet drawing those boundaries requires implicit modified comparative fault reasoning, we hold power plants strictly liable but exempt agriculture below certain thresholds, we include combustion emissions but exclude most land use change, we cover direct emissions but make supply chain emissions voluntary. Each boundary decision is really asking at what point does responsibility shift from “yours” to “not yours”? The EU ETS covers only 40% of emissions precisely because expanding boundaries raises impossible questions about responsibility allocation across global supply chains and consumer behavior.
The international climate architecture reveals these frameworks colliding most starkly. The Paris Agreement’s “common but differentiated responsibilities” principle sounds like pure comparative fault, everyone contributes proportionally based on capability and historical contribution. But operationalizing this through Nationally Determined Contributions (NDCs) produces modified comparative fault outcomes instead. Countries self-differentiate their obligations based on perceived development thresholds, with 136 nations conditioning implementation on external support. This creates bizarre inversions a developing country might argue “until you cross the threshold of providing adequate climate finance, responsibility for our emissions shifts to you” (modified comparative fault), while developed countries counter “you’re responsible for your emissions proportional to your current economic capability” (pure comparative fault). Neither framework resolves the underlying dispute about whether responsibility is continuous and proportional or threshold-dependent.
There is where legal theory and economic reality produce their most painful friction. Pure comparative fault aligns philosophically with polluter pays and proportional responsibility, economists love it because it internalizes externalities efficiently. But markets require participants to actually accept and price their allocated responsibility, and that acceptance depends on competitive positioning. A carbon tax embodying strict liability, you emit, you pay this price, no excuses, sounds economically efficient until companies in high-price jurisdictions face competitors in low-price jurisdictions. Then modified comparative fault logic takes over If our carbon price exceeds 50% of competitors’ costs, responsibility shifts entirely, either harmonize globally or we’ll relocate production. Carbon leakage is not just companies gaming regulations, it is the modified comparative fault threshold manifesting through market dynamics.
This competitiveness constraint explains why carbon pricing remains fragmented across 75 wildly different implementations covering only 28% of global emissions. Each jurisdiction makes implicit threshold calculations how much responsibility can we assign our emitters before crossing the tipping point where economic harm exceeds environmental benefit? Singapore prices carbon at $25/ton CO2, Sweden at $137, and many jurisdictions at near-zero. These are not different estimates of climate damage, they are different judgments about modified comparative fault thresholds. The economically optimal solution, global harmonized carbon pricing imposing uniform strict liability, remains politically impossible precisely because it requires every jurisdiction to accept that responsibility is continuous and proportional rather than threshold-dependent and competitive.
Corporate carbon accounting struggles mirror these tensions at firm level. When companies resist comprehensive Scope 3 measurement, they are invoking contributory negligence logic “If our suppliers and customers share responsibility for these emissions, why should measurement obligations fall entirely on us?” The economic incentive is clear, admitting proportional responsibility (pure comparative fault) exposes firms to stakeholder pressure and potential future liability, while maintaining narrow boundaries (modified comparative fault with strict control thresholds) protects competitive position. Yet this very resistance makes system-wide accountability impossible. If Company A accounts for supplier emissions but the aluminum smelter does not account for downstream impacts, we double-count some emissions while missing others entirely. The system requires universal pure comparative fault logic while individual actors rationally favor modified comparative fault boundaries.
The deeper issue is that climate change demands we think about responsibility systemically while our legal and economic tools evolved for bilateral disputes between identifiable parties. Tort law assumes a defendant who injured a plaintiff, two parties, clear causation, contemporary harm, individual remedy. Carbon markets assume individual actors making marginal decisions within stable competitive structures. But climate is a commons problem where millions of actors’ choices create collective harm through atmospheric accumulation over decades, affecting people and places far removed from emission sources. Asking “who’s responsible?” using frameworks designed for car accidents or breach of contract is like asking “who’s responsible for traffic?” when you are stuck in a jam, technically everyone and functionally no one.
This explains why passionate environmental activism and pragmatic economic solutions keep talking past each other. Activists invoke moral clarity “Fossil fuel companies knew and lied, they bear strict liability for climate damages.” Economists counter with market logic “Even if morally true, strict liability without clear causation boundaries or enforcement mechanisms just creates regulatory arbitrage and leakage.” Both are right within their frameworks, but the frameworks are incompatible. Strict liability requires clear causation chains and enforceable judgments. Pure comparative fault requires universal participation and proportional accountability. Modified comparative fault creates threshold gaming and coordination failures. Contributory negligence lets everyone off the hook by pointing at others’ contributions.
What tort liability frameworks ultimately reveal is that carbon responsibility is not a measurement problem awaiting better accounting standards or a pricing problem awaiting optimal tax rates. It is a conceptual problem about how responsibility works when causation is joint and unending, when temporal and spatial separation severs intuitive connections between action and harm, and when economic incentives reward narrow boundaries while collective welfare demands comprehensive accountability. We have built climate solutions, carbon accounting, pricing mechanisms, international agreements, that implicitly rely on different, incompatible models of responsibility allocation. Until we reckon with these foundational tensions rather than papering over them with technical fixes, our struggles with carbon responsibility will persist regardless of measurement precision or price levels. The question is not whether polluters should pay, but how we define “polluter” when we all breathe the same atmosphere and causation chains extend infinitely in all directions.
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