ABSTRACT
Consider first the crime approach (Kolers 2012, p. 334). Criminal responsibility typically requires an intentional act that was prohibited at the time of its doing, and usually also requires that the bad results be foreseeable. This is an implausible description of the large majority of actions leading to climate change. As noted by Risse (2009, p. 282), emissions of green-house gases were completely legal at the time the majority of damage was done (and largely still is).39 Furthermore, for most of the time when significant greenhouse gases were emitted, there was no wide-spread understanding of the danger. Perhaps an argument could be made about further release of gases, but it would be hard to show that these were proximate causes of the harms to those facing danger, as opposed to releases of gases in the past. If we want an analogy with crime to work, it is important to make sure there is a real analogy. At best, Kolers has not shown this, and the proposed analogy seems quite weak on several grounds.
