Plaintiffs trying to affect climate policy through the courts are more successful in cases involving renewable energy and improving energy efficiency, rather than addressing climate change directly, a new study says.
The study, “Strategies in and Outcomes of Climate Change Litigation in the United States,” was published earlier this week in the journal Nature Climate Change. The authors analyzed climate change-related cases in the United States between 1990 and 2016 to understand what types of cases succeeded.
“In these renewable energy and energy efficiency cases, we see decision-makers in places you would not expect to act on climate change acting to support renewable energy,” said lead author Sabrina McCormick, associate professor of environmental and occupational health at George Washington’s Milken Institute School of Public Health.
In conservative states such as West Virginia, those types of cases can succeed, while cases that focus more directly on climate change have a harder time prevailing.
The researchers used a database of 873 climate change-related lawsuits provided by Columbia University Law School’s Sabin Center for Climate Change Law. McCormick and a group from George Washington University and the New York University School of Law categorized each case, interviewing key litigants about the suit.
Cases were categorized according to desired outcome—either pro-regulatory or anti-regulatory —and by legal strategy.
While renewable energy and energy efficiency cases were more likely to succeed, plaintiffs often lost suits seeking to lower emissions.
“There’s a lot of promise if we try to use the courts to advance the rapid expansion of renewable energy and energy efficiency—apparently, it really does work,” she said. “It works better than using the Clean Air Act potentially, which to me is very surprising because the Clean Air Act is the main regulatory mechanism for stopping greenhouse gases.” McCormick said she wasn’t discounting suits using the Clean Air Act just because past suits failed.
Overall, researchers found that litigation that opposed regulations were more successful than suits seeking more regulation, particularly in cases involving coal-fired power plants and other air quality issues.
While the number of energy efficiency and renewable energy cases was smaller, outcomes in those suits were more likely to favor more regulations.
Cases involving biodiversity‚ including those involving endangered species, were about evenly split.
“It seems like a bit of a round-about way to address climate change, but we do see that the effectiveness of pro-regulatory plaintiffs is higher in those types of cases and secondly plaintiffs can actually really make a difference in the climate approach,” McCormick said, referring to cases that eventually protected polar bears and also kept the oil in the ground.
Pro-regulatory litigants had more success on cases involving the Clean Air Act, the Endangered Species Act and the California Environmental Quality Act, while anti-regulatory litigants were more often successful in cases involving public trust and other common law doctrines.
One potential exception could be Juliana v. United States, the landmark case against the U.S. government for violating the public trust doctrine and constitutional rights. It is scheduled for trial in October.
In that case and others, the issue of whether the plaintiffs have standing is perhaps the most crucial. McCormick said the researchers found many cases that courts would not hear because the plaintiffs lacked standing.
“One of the things we see in our research is that plaintiffs often build coalitions with the idea being to gain standing and this is a really important strategy—if you can build a coalition that shows there’s an impact of climate change on you that the courts can address, you have a much greater ability to bring a case that first of all the court will hear,” said McCormick.
McCormick said the research was prompted by something she noticed while she working at the Environmental Protection Agency.
“I started the project because I was at the EPA and one thing I hadn’t realized before going to the EPA is that it doesn’t matter what the EPA does, it’s always getting sued on both sides and that this branch of government – the judiciary – is a really important arena in which climate change policy was being made,” she said.