Climate change litigation involves any lawsuit related to the natural phenomenon. Environmental non-profits and government entities often initiate such legal action in anticipation of the enormous costs of adapting infrastructure and services to the effects of the crisis.
When pursuing legal action against corporations, specifically large contributors to greenhouse gas emissions, plaintiffs seek financial awards needed for climate impact mitigation. These lawsuits not only address immediate fiscal requirements but also aim to hold polluters accountable, thereby encouraging more environmentally responsible practices.
As the climate crisis keeps intensifying, the judiciary’s role in addressing these issues becomes increasingly important, with the potential to drive significant policy reform and enhance corporate responsibility.
Claims and Contentions
Limited US legislation specifically targeting climate change has led individuals to seek judicial remedies through no more than legal assumptions. Attorneys employ securities laws to argue that companies deceive investors by ignoring climate change risks.
Existing environmental laws, such as the Clean Air Act, Clean Water Act, and the National Environmental Policy Act, are also utilized to compel climate action. Additionally, plaintiffs often resort to common law, particularly tort law.
High-profile lawsuits brought by state and local governments against fossil fuel companies frequently invoke the common-law cause of action known as public nuisance, contending that these companies have infringed upon the general right to atmospheric stability by contributing to climate change.
A Victorious Case
Europe’s top human rights court decided a landmark case, ruling that the Swiss government violated citizens’ rights by inadequately addressing climate change. This precedent-setting decision, favoring over 2,000 Swiss women, is expected to influence future climate lawsuits across Europe and beyond, encouraging more communities to take legal action against governments. The court rejected two other climate-related cases on procedural grounds, including one by six Portuguese youths against 32 European governments and another by a former French mayor.
The Swiss plaintiffs, KlimaSeniorinnen, argued their government’s inaction on climate change endangered their lives during heatwaves, emphasizing their age and gender made them particularly vulnerable. Court President Siofra O’Leary highlighted the Swiss government’s falling short of its greenhouse gas emission targets and to establish a national carbon budget, warning of severe consequences for future generations.
Rosmarie Wydler-Wälti, a leader of KlimaSeniorinnen, expressed disbelief at the ruling, describing it as the “biggest victory possible.” The Swiss Federal Office of Justice acknowledged the court’s decision.
Climate Change Liability Attribution
Two critical questions arise from climate change lawsuits. One concerns physical science as it explains the degree to which a climate event can be linked to human-induced greenhouse gas emissions, a process commonly referred to as climate attribution. A network of climate scientists worldwide utilizes models to illustrate how significantly an extreme event, such as a hurricane or heat dome, was exacerbated or made more probable by human-induced global warming.
The other lies in demonstrating the responsibility of the specific defendants named in the lawsuits—be it a government, a corporation, or individuals—for the human contribution to warming, known as source attribution.
Studies employ historical records like corporate documents, mining leases, or securities filings to estimate the volume of carbon attributable to specific corporate entities. However, it remains to be seen how courts will respond, as these studies presuppose that corporate actors bear responsibility for emissions throughout the supply chain.
At the core lies a moral and political dilemma regarding allocating responsibility for the end-use combustion of fossil fuels. Responsibility could rest with the government, which authorizes and subsidizes the fossil fuel industry. However, it could also rest with the industry itself, which arguably wields significant influence over government actors. Alternatively, responsibility could extend to consumers and end-users who purchase and utilize these fuels.
The Courts on the Fact of Climate Change
One significant benefit of climate change lawsuits is that courts acknowledge the scientific consensus behind climate change as human-caused. However, to prosper in court, plaintiffs must substantiate their claims with logical reasoning, evidence, and expert testimony instead of relying on mere assertions.
In 2012, a federal court dismissed a lawsuit by Inupiat Eskimos from Kivalina, Alaska, against 24 oil, energy, and utility companies. Beyond the lack of subject matter jurisdiction as the cause for dismissal, the court ruled that the plaintiffs failed to connect their alleged injuries to the defendants’ activities. The lawsuit claimed climate change diminished Arctic sea ice, leading to coastal erosion, but the court found insufficient evidence proving the link.
From Federal to Municipal
The 2023 Supreme Court decision allowing municipalities to sue energy companies in state courts marks a legal milestone. With the current conservative leanings of the Court, the ruling’s outcome was uncertain. It could have restricted climate change issues solely to federal jurisdiction due to their national and global impact.
However, the ruling’s implications are far-reaching. These cases, dispersed across various states, reflect a concerted effort by litigants to find legal avenues for potential trials.
Advancing from initial motions to the discovery and trial phases changes the balance of power among the involved parties. This transition emboldens plaintiffs to demand documents and construct narratives regarding what the industry knew and its actions based on that knowledge.
Fighting Climate Change Through the Legal Profession
The legal profession faces the challenge of ensuring equitable access to justice for those disproportionately impacted by climate change. History shows that individuals most affected by climate change often encounter barriers to accessing the judicial system. How can the legal profession facilitate their inclusion in decision-making processes moving forward?
The issue of access to justice is closely related to socioeconomic resources and networks of influence. Nonetheless, the judiciary offers a platform for addressing grievances, wherein filing a lawsuit necessitates responses from defendants and adjudication from judges. One may view this aspect as a democratizing force within the legal system.
Efforts must be directed at providing resources, legal aid, and knowledge to individuals in need. Globally, there is a coordinated and ambitious climate litigation community, including environmental NGOs, activist groups, and a sophisticated philanthropic sector.
Entities such as Greenpeace, the Sierra Club, Earthjustice, and the Climate Litigation Network support legal actions in regions particularly vulnerable to climate impacts, such as low-lying small island states and developing nations like Pakistan.
The disproportionate vulnerability of specific communities to climate change effects highlights a fundamental injustice. The Rockefeller Foundation and the ClimateWorks Foundation are two examples of philanthropic organizations actively addressing this disparity, striving to rectify the imbalance of those least responsible for climate change suffering its gravest consequences.
Into the Future of Climate Change Lawsuits
As climate suits progress in the coming months and years, monitoring their potential impacts on the energy industry is worthwhile. A significant question, especially in the United States, is whether any of these lawsuits may successfully advance past preliminary motions and industry efforts to dismiss the cases.
If lawsuits proceed from discovery phases to jury trials, it remains unclear if this may alter the industry’s—including investors and board members—perspective on climate legislation. The picture could involve a whole range of issues, from renewable energy initiatives to tax incentives or penalties, as part of broader climate policy discussions.
At this point, the industry could potentially engage with Congress to pursue comprehensive climate change legislation that provides immunity from state lawsuits in exchange for supporting such bills. Thus, the proposed arrangement would entail the energy industry supporting climate policy at the federal level to gain protection from tort claims posing business risks.
An alternative outcome may involve drawing comparisons to instances where gun industry lawsuits eventually broke through legal defenses, after which the industry leveraged extensive political influence to secure immunity through Congress without contributing policy reforms. Essentially, the gun industry’s power over legislators allowed erasing legal threats without making concessions.
Accordingly, a key uncertainty lies in whether these lawsuits may pressure the energy industry to transition business models or prompt the use of political leverage to gain legal protections without responsibilities.
Legal Reflections
As climate change lawsuits evolve, they provoke critical questions about responsibility and action. The legal process increasingly acknowledges climate science’s consensus but grapples with attributing liability. These cases aren’t just about compensation but societal reckonings affecting governments, businesses, and individuals.
The Swiss court ruling signifies a turning point, showcasing the judiciary’s potential to catalyze change. Yet, barriers to justice persist, particularly for marginalized communities.
As lawsuits progress, they may not only shake up the status quo but also spark broader policy debates. Will they inspire genuine systemic shifts or merely raise defenses? The outcome depends on stakeholders making sense of the legal, political, and ethical overlaps in this battle against climate change.
