Once upon a time national environmental and clean energy policies were proposed, properly debated and acted upon by Congress and the president. In that bygone time the federal judiciary was called upon mainly to consider matters of constitutional import, clarify ambiguities and resolve conflicts between federal and state laws.
The days of constructive political debate and compromise in the legislative and executive branches of government are long gone, leaving the courts as the primary venues in which the causes and consequences of global climate change are debated, and solutions sought. The number of federal and state climate lawsuits related to Earth’s warming has steadily increased since 2006—so too has the role of science.
The rise in the number of cases is attributable to several factors—not the least of these is the fickleness of politics and persistent partisan gridlock. Dr. James Hansen, one of the world’s foremost climate scientists, offers as good an explanation of these developments as there is at the moment:
The judicial system is the only way to get the funds needed to deal with climate change. Legislation won’t work because that’s where lobbyists rule.
Hansen’s statement is an alternate reflection of Trump’s view of the Swamp he has so far failed to drain.
The nature of climate-related lawsuits has also been changing in recent years. Traditionally environmental law cases have focused on government action, i.e., regulation, and/or inaction, i.e., the failure to regulate, pursuant to legislative mandates like the Clean Air Act.
A growing number of current and anticipated cases seek to establish individual rights and government responsibilities based on the U.S. Constitution irrespective of an existing law. For example, plaintiffs in Juliana v United States et al. are asserting a Constitutional right to a habitable environment over throughout their lifetimes and those of generations yet born.
Recent legal actions by state and local governments are targeting corporate polluters and following a similar path as the one plowed in the tobacco cases. New York City recently filed a suit against ExxonMobil alleging the company deliberately engaged in a campaign of deception and denial about global warming and its impacts. The case is based on a study showing the company sowed doubt about the human nature of climate change, even as its own scientific papers and internal documents acknowledged the problem. The NYC suit follows similar judicial filings against fossil fuel companies by seven California communities, including the cities of Oakland and San Francisco and San Mateo County.
Filed in state courts, these are tort cases, as they ask the court to enjoin the defendant companies from further harmful practices and seek compensatory damages for the harms they have suffered. Collected funds would be used to improve the habitability and resilience of the affected communities. A tort is defined in law as: An act or omission that gives rise to an injury or harm to another and amounts to a civil wrong for which courts impose liability.
Climate science is not only being introduced into civil court suits. It is being offered as a defense against criminal charges levied for civil disobedience. The alleged acts generally involve such activities as shutting down an oil or gas pipeline by an unauthorized valve closing or temporarily blockading passage of a coal train.
Defendants in these cases admit to violating the law but claim the violation was necessary to prevent a greater harm for which there is no available legal recourse.[i] These cases are not to be taken lightly as they can carry fines of more than $50,000 and jail time of 10 years or more.
The necessity defense is not just about avoiding punishment. If permitted by the court, the plea allows defense counsel to put climate-science on the witness stand along with their clients.
The above-referenced cases are only the latest in a long line of environmental lawsuits. They point to the future but are based upon past decisions.
One of the clearest examples of a court having considered the laws of society and science when making its decision is the landmark case of Massachusetts v. EPA. The suit was filed in 1999 in response to the U.S. Environmental Protection Agency’s (EPA/Agency) refusal to regulate the emission of greenhouse gases (GHGs) from auto tailpipes, pursuant to section 202(a)(1) of the Clean Air Act (CAA). The plaintiffs in the case alleged that the emission of carbon dioxide (CO2) and other greenhouse gases (GHGs) into the atmosphere endangers the public’s health and welfare, as well as the habitability of the planet.
The Agency based its rejection of the plaintiffs’ petition on:
The Court believed EPA was too narrow in its interpretation of both the science and the legislation. It ordered the Agency in 2007 to expand the scope of its review of the available scientific evidence.
Upon reconsideration of the scientific data, the Agency found sufficient reasons to conclude the public’s health and welfare were at-risk from climate change; and, GHG emissions from motor vehicles were a contributing factor. Having come to those conclusions, EPA was obligated to issue a formal endangerment finding, which it did in 2009.
It was the opinion of the Court that once an endangerment finding was made, EPA would be required to issue regulations curbing emissions of carbon dioxide, methane, and other heat-trapping air pollutants. By the terms of the CAA, the regulations would go beyond vehicles to include power plants and other source points of GHG pollution. The Obama administration attempted to meet the Court’s requirement through the Clean Power Plan (CPP) and other air emission standards, e.g., for methane emissions from drilling operations on federal lands.
The Trump administration has expressed its intention to revise and possibly rescind the CPP and other Obama era air regulations. It is speculated the EPA may even attempt to retract the endangerment finding. Whatever the decision, the Administration will be challenged in court by climate defenders. Given the decision in the Massachusetts case, Trump and company will have a difficult time convincing a court of the uncertainty of climate science.
Each of the cases mentioned here is different in their specifics. However, all are similar in several significant ways. They allege:
The legal theories in the recent climate-related lawsuits are still untested, and It will likely take years for them to wend their way through the judicial system. Fortunately, their value is not entirely contingent on a positive outcome. According to Ken Kimmell, president of the Union of Concerned Scientists:
It is well to remember that “impact” litigation” is successful even if there is never a final court order or jury verdict…If these cases survive early motions to dismiss…and if similar cases are filed in other jurisdictions, these actions could conceivably create leverage for an overall settlement in which fossil fuel companies cease all climate science denial, make explicit and enforceable commitments to phase out fossil fuels over time and/or equip power plants with carbon collection mechanisms….
Left off Kimmell’s list of positive impacts is the import these and other cases can have on public policy debates. Justice Stevens, writing the majority opinion, in the Massachusetts case stated:
Given EPA’s failure to dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming, its refusal to regulate such emissions, at a minimum, “contributes” to Massachusetts’ injuries.
Despite its protestations to the contrary, the G.W. Bush administration was willing in Massachusetts to accept the plaintiffs’ casting of climate change as an injurious consequence of GHG emissions that are largely the result of human activity. In Juliana, the Trump administration has similarly acquiesced to the plaintiffs’ allegations of the seriousness of the problem and the threat it poses to the habitability of the planet should it continue to go unchecked.
The two administrations with the worst environmental records in modern presidential history are accepting of the veracity of mainstream climate-science in a court of law yet have had no difficulty denying it elsewhere. Similarly, the tort cases in New York and California shed light on the duplicity of corporations whose internal records are at odds with their public statements.
The rising number of climate-related lawsuits is not a sign of a properly functioning and responsive government nor a corporate sector widely concerned about the habitability of the planet; rather it reflects their failings. Hardly ideal venues in which to pursue the full array of needed policies and protections, the courts are currently the last line of defense. The pleadings, admissions and trial transcripts developed by these cases can and should be used to greater effect in the court of public opinion and ultimately to rebalance the functions of all three branches of government.
I encourage climate advocates to undertake a deep dive into these cases and to use the deniers own words against them in the court of public opinion.
[i] The defense is most commonly claimed in situations where there is an immediate and easily recognizable danger, e.g., a house fire, prompting a trespass on the property to save a life. In climate-related cases it has only been allowed three times since 2014, without much success.
Photo credit: Courtesy of Unsplash and Claire Anderson
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.