Climate change action is proving to be the political, diplomatic, and legal rollercoaster of our time. Just as the Paris Agreement got adopted by almost every single nation in the world and was hailed as the most promising international environmental law development for years, if not ever, the incoming Trump administration announced its intent to not only withdraw from the treaty, but also to take several other steps to dismantle much of the climate change progress otherwise made in the United States for years. The effects of this on the international arena and on the underlying substantive problem are yet unclear, but it stands to reason that political, diplomatic and practical retreat from the superwicked problem of climate change is not good news at any scale. The American stance on climate change stands in stark contrast with developments in other nations, many of which are already backing their Paris pledges with national laws. One analysis shows that fourteen new laws and thirty-three executive policies related to climate change were introduced between the adoption of the Paris Agreement and May of 2017; a span of just one-and-a-half years. These new laws add to the over 1,200 climate change-related laws that were enacted since 1997 in no less than 164 countries including 93 of the top 100 greenhouse gas (“GHG”) emitters. Compare this to the fact that in 1997, only sixty such laws existed just as in 2015, only 99 nations had any climate change laws at all. Nonetheless, serious doubt exists as to whether we, as a global society, will be able to curb the problem in time to prevent the potentially yet unforeseen and highly dangerous consequences of years of excessive global fossil fuel use. Even if the Paris parties actually lived up to their Paris Agreement pledges, an emissions gap still exists preventing us from reaching the 1.5-2° C temperature increase goal stipulated in the Paris Agreement. In other words, if fully implemented, the Paris pledges are projected to reduce warming by the end of the century by about half a degree Celsius only, from 3.6 C to 3.0 C. For these and many other reasons, it is doubtful whether regulatory and international diplomatic solutions will be forthcoming and sufficiently effective to solve the problem in time. In contrast, litigation may be an avenue that, in combination with others, might “nudge” forth more action than solely relying on nations and subnational entities to produce the urgent solutions that we need. Such litigation may take place among purely private actors, private actors suing government entities, or among government entities internationally. A new round of, for the most part, privately instigated climate change-related litigation has been commenced in several nations around the world. This article will analyze the most promising of these cases in order to demonstrate the common litigation threads that litigators may choose to follow in the future. The article will show that these cases are non-regulatory and non-treaty based. Instead, human rights and constitutional law are appearing as new (or renewed) potential inroads against both recalcitrant nations and traditionally heavily polluting companies and industries. Suits for damages under common law torts principles are also rearing their heads as promising private causes of action. An exception to the trend away from regulatory-based suits is presented by actions based on investment regulations such as those in the Securities Exchange Act as will be briefly described below. Much litigation risk exists for private entities. Litigation, of course, has several known downsides: It is costly and time-consuming. Outcomes are far from guaranteed. It is a highly adversarial process that often leads to hard feelings among parties and bad publicity in the media. Compliance with judicial decisions is uneven nationally and especially internationally. At the same time, these cases are powerful vehicles for the progressive action on climate that is urgently needed. Far from being an undue interference with policy making processes, courts are reaching decisions in accordance with existing law and science. For as long as governments fail to take the steps necessary to avert dangerous change, courts can be expected to act as vital checks on political inaction. As precious time continues to go by, the climate change problem has to be tackled from several angles in order to create the solutions that we simply have to bring about lest we are willing to enter a future with an unacceptably high risk of severe and potentially irreversible damage from climate change. Whereas litigation is not a panacea that can solve the problem without more, it does present some potential for progress that is worth investigating in these times of uncertain climate change action at the political level.
See You in Court: Around the World in Eight Climate Change Lawsuits, 42 Wm. & Mary Envtl. L. & Pol’y Rev. 525
August 6, 2018