By Lynn Zinser
A recent report has attempted to get its arms around how much climate change litigation is happening around the world, coming to the conclusion that the field is growing, particularly in the United States.
According to the report, compiled by researchers from the UN Environment Programme and Columbia University, the number of cases reached 654 in the U.S. as of March 2017, and the number of countries where a climate liability case has been raised has tripled since 2014. The researchers said they included lawsuits filed against governments as well as corporations accused of being climate polluters using various legal means, including environmental law, natural resources law, energy law and land use law, as well as constitutional law, administrative law and common law.
The report also outlines the legal issues involved and why so few of the cases so far have succeeded, but it also catches the field at a very early stage, some legal experts say.
“The report gives us a snapshot of where we are right now, but the legal storm is building,” said Lewis Gordon, Executive Director of the Environmental Defender Law Center and a lawyer who has worked on public interest environmental issues for most of his 35-year career.
“Legal landscapes change very, very quickly. Look at the right to gay marriage. It went from nowhere to a Supreme Court decision at a speed that exceeded everyone’s expectations. It was lightning fast.”
The climate change litigation detailed in the UN report stretches back more than a decade and describes early attempts to hold major greenhouse gas emitters responsible for the impacts they have had on people and communities. It does acknowledge ongoing cases, including Juliana v. United States, in which 20 young people are suing the U.S. government for policies exacerbating climate change and threatening their future, relying on what is known as the public trust doctrine. The report calls it “consistent with an international groundswell of cases in which litigants have implicated that doctrine in their challenges to inadequate government climate change mitigation or adaptation efforts.”
In addition to compiling these cases, it aims to “assist judges in understanding the nature and goals of different types of climate change cases, issues that are common to these cases, and how the particularities of political, legal, and environmental settings factor into their resolution.”
Among the report’s findings:
• Following the U.S.’s 654 cases, Australia comes in second with 80 cases and the United Kingdom is third with 49.
• It highlights the failure, so far, of cases brought under tort, nuisance and negligence claims, focusing on a 2012 Court of Appeals decision against the plaintiffs in Native Village of Kivalina v. ExxonMobil, which ruled that because the federal government was responsible for regulating greenhouse gases under the Clean Air Act, common law was displaced by that federal law and prevented the village from holding the oil company accountable for climate change.
• Other failures have stemmed from courts’ refusal to acknowledge a causal linkage between greenhouse gas emissions from a particular company to climate change overall.
The report does acknowledge that the past failures are not dissuading parties from pursuing new legal routes. “In addition to proliferating, climate change litigation also seems to be growing in ambition and effectiveness: cases across the world provide examples of litigants holding governments to account for the actions or inactions that bear upon those litigants’ rights amid changes to weather and coastlines,” the report says.
According to Gordon, the increasingly obvious impacts of climate change are going to make these cases harder to brush aside.
“We know it is going to get easier and easier to show causes for the harm and judges and juries are going to have to be sensitive to that harm,” he said.
“What we do have that other countries do not is tort law. I think that’s where we are going to see the bulk of development in the coming years. We don’t have a lot of cases, but we have some and I’m confident that we will see a lot more. We are at a real crossroads.