How is State Tort Law Relevant for AI Safety?
- State tort law will be a critical tool for remedying AI safety harms, as it is an effective and efficient way to address industry-caused harm in cases affecting people in multiple states.
- However, state tort law is under threat. Fossil fuel companies recently advanced arguments in a Supreme Court climate change case that, if accepted, could broadly restrict the use of state tort law beyond that context.
- Protecting state tort law across industries is critical for ensuring the safe and responsible expansion of AI technologies.
As artificial intelligence (AI) companies race to build ever more powerful AI models and make them indispensable for consumers, there is growing concern over the harms AI is causing or could cause through AI products hallucinating and going rogue, shifts in employment patterns, intellectual property theft, and the environmental, social, and health impacts on communities facing data center buildout. Legislators, AI companies, the Trump administration, and just about everyone else are putting forward proposals for how to mitigate and respond to these harms.
While thoughtful and deliberate legislation is clearly necessary to address some of the novel aspects of AI and resulting risks, citizens already have one important tool for remedying AI safety harm: state tort law. However, efforts to insulate industry from accountability are already underway. Industries are seeking liability waivers in Congress and in state legislatures, while radical arguments advanced by the fossil fuel industry in a climate change damages case recently heard by the US Supreme Court seek to substantially alter the traditional authority of states to apply their tort law to protect their citizens’ health and safety, with implications far beyond just the climate context.
In Suncor v. Boulder, the City of Boulder and Boulder County—represented by EarthRights and our co-counsel—are seeking to hold Exxon and Suncor responsible for what the municipalities allege are local harms resulting from the companies knowingly contributing to the harmful alteration of the climate while concealing the dangers of their products and misleading the public. The case is brought under state tort law, and it seeks to ensure that the companies pay their fair share of the rising costs of climate impacts harming local communities. The fossil fuel company defendants are seeking to overturn a Colorado Supreme Court decision that allowed the claims to proceed and rejected the companies’ arguments that federal law immunized them from state-level damages claims. But the companies have advanced a far broader argument in front of the Supreme Court, asserting that state tort law can’t apply to local in-state harms caused by out-of-state behavior. That argument, if accepted, could reach far beyond the climate change context, fundamentally upending the constitutional balance of power between state and federal governments by stripping states of their traditional authority to protect their citizens.
State Tort Law is a Fundamental Part of the U.S. Legal System
Tort law provides the ability for one party to be compensated for injury caused by another party’s civil wrongdoing, such as when a company sells a product it knows has a safety defect, and that product then hurts someone. Tort law originated in the 13th century, and in the United States, state tort law has provided remedies for injuries suffered within their borders since the country’s founding. It has largely developed through common law, which means that the law has mostly been built and developed through judges’ decisions instead of through state or federal legislation. Almost all tort cases are litigated under state law, including those holding parties responsible for in-state damages caused by conduct outside the state, as the City of Boulder and Boulder County are seeking to do in their case.
One particularly valuable aspect of tort law is that it is not a zero sum game. Courts do not have to decide that a defendant is 100% responsible for harms that the plaintiff suffered in order to hold them accountable for their fair share of those harms. While each state has its own liability regime, states may allow defendants to be liable for their fair share of harms, whether they are responsible for all, a majority, or a minority of harms. It’s an equitable and transparent way to ensure that one person’s economic progress in the US does not unfairly impose costs on another person. As with all law, the ability to bring these kinds of cases to court does not mean the court will find those claims persuasive, but it does mean that everyone has access to justice.
State Tort Law for Corporate Accountability, including AI
Injured parties have been exercising state tort law to hold entities liable for out-of-state conduct that causes harm within the state’s borders since the beginning of this nation. Litigation over harms from major industries such as tobacco, asbestos, lead paint, PFAS, medical devices, and opioids have all involved state tort law claims, which are particularly well suited to addressing cases involving industry-caused harm that affects people in multiple states.
State tort law is likewise well suited to addressing harms to public health and safety arising from the rapid AI buildup and its corresponding safety implications. Per a survey of AI researchers, the most urgent risks AI poses include: AI systems possessing dangerous weapons, AI-enabled weapons and cyberattacks, environmental harm, inequality and unemployment, and power centralization and unfair distribution of the benefits of AI. If any of these harms occur, they will likely involve AI and data center companies in one location causing serious harmful consequences for individuals and communities elsewhere. And, as with other industries, state tort law will be an appropriate and important mechanism for ensuring that those companies can be held responsible for the impact they cause to people and communities. Whether these harms arise from deceptive practices or shoddy workmanship, state tort laws will be a critical tool for ensuring that AI companies – from AI frontier companies to data center companies – are held accountable for any significant harm that they cause, rather than externalizing the costs of their operations onto taxpayers and private individuals.
State Tort Law Under Threat
However, there are ongoing efforts to undermine the ability to use state tort law, both within the judicial and legislative systems. Indeed, a nationwide “tort reform” network has long lobbied at the federal and state levels to make it more difficult to hold corporations accountable when they cause harm to others.
If the Supreme Court were to accept Suncor and Exxon’s unprecedented constitutional argument that the principle of states’ equal sovereignty prohibits the use of state law to hold Exxon and Suncor accountable for in-state damages caused by out-of-state harm, it would upend this traditional state authority. As explored by media and legal experts, this would be a dramatic reinterpretation of state tort law, and it could undermine other efforts to protect local communities, even beyond the climate change context. The City and the County have demonstrated that nothing in the Constitution’s text, history, or tradition supports Exxon and Suncor’s arguments.
While these arguments are advanced in courts, certain industries are also seeking to secure immunity to circumvent the judicial system altogether, following the example of the gun industry. The fossil fuel industry is seeking a federal climate liability waiver, which would immunize them from claims seeking to hold them accountable for any climate-related damages, including those resulting from their deception about climate change. It has already succeeded in passing similar bills in several states. Other industries are pursuing a similar strategy: some companies in the AI sector want liability waivers, as do the pesticide industry, artificial stone manufacturers, and others. These proposals are often more expansive than any form of industry liability waiver in place today.
Attempts to immunize an industry against a whole subset of legal claims places corporate interests over the health and safety of citizens, leaving the rest of us to bear the costs of corporate profits. These attempts attack one of the most tightly held American values: equality under the law. If these current efforts succeed, they will open the immunity floodgates, paving the way for other industries to place themselves above the law as well.
State law is and will continue to be a critical tool for redressing harms to citizens’ health and safety caused by a wide swath of industries, including AI. And to the extent that much-needed regulations are promulgated to protect the public, those regulations should serve as the floor, not the ceiling. As some experts have noted, a regulatory infrastructure could provide uniformity while allowing state tort law to impose accountability and allocate losses. Efforts to weaken state tort law in favor of industry actors are antithetical to our constitutional democracy and a threat to all of us.