Most nations of the world – including China – are on board with taking on climate change. Meanwhile, the two largest contributors to the problem, Russia and the United States, are flatly refusing to take meaningful action (although Russia is attempting to have it both ways by protecting itself from the effects of climate change while doing virtually nothing to reduce its carbon emissions). Of course, no help can be expected from the fossil fuel industry – and since those who make the law have failed in their duty to protect the planet for future generations, it has fallen to those who argue and interpret the law to take up the battle.
The question is – will litigation succeed where lawmakers and citizen protests have failed?
Climate litigation is largely uncharted territory for the legal profession, but for environmentalists, it is their last, best opportunity to hold governments and corporations accountable for the damage they have allowed to occur over the past several decades. It is a two-pronged strategy: on one hand, advocates hope to use existing laws in order to force governments to take stronger action on climate change. On the other hand, they are attempting to force corporations, particularly the fossil fuel industry, to change their ways and pay for environmental harm caused by their products and business practices.
Although climate litigation is getting increasing attention in the media, it has been going on for over 20 years. The first such lawsuits were filed in the 1990s by states and environmental groups, naming federal agencies as defendants; the strategy was to force these agencies to take action in holding
companies responsible for the carbon emissions they produce and the consequences. Generally, these were filed under existing environmental laws, primarily the Clean Air Act.
Those early legal pioneers faced serious obstacles simply bringing their cases to court. The most difficult hurdle for plaintiffs was proving they had standing to bring a complaint under Article III of the U.S. Constitution – meaning they had to demonstrate that they had suffered an injury as the result of a defendant's action or inaction.
State governments were able to meet that standard in Massachusetts v. EPA, a case which finally came before the Supreme Court in 2006. In that case, Massachusetts and 12 other states in addition to three major cities, the U.S. territory of American Samoa and numerous environmental organizations sued to force the EPA to regulate greenhouse gases as pollutants. The central question of the case was whether or not the EPA was obliged to regulate carbon dioxide under the Clean Air Act. The defendant argued that action was already being taken by the automobile industry as fuel efficiency was increasing – and of course, that scientific evidence for climate change was “inconclusive.”
In a 5-4 decision, the Court ruled that CO2 emissions were covered under the Clean Air Act, as the law defined a “pollutant” as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive...substance or matter which is emitted into or otherwise enters the ambient air.” In essence, the EPA was found to be responsible for enforcing the Clean Air Act.
Today, there are several hundred environmental lawsuits being filed across the globe, including one against the Norwegian Oil and Gas Association, in which Greenpeace is attempting to stop oil and gas exploration in the Arctic. Most environmental lawsuits are being filed in the U.S., however; former California governor and film actor Arnold Schwarzenegger recently announced that he would be pursuing legal action against the oil industry, comparing their actions to those of Big Tobacco.
So far, it has been an uphill fight for environmentalists as the fossil fuel industry pulls out the proverbial stops to defend itself under a blatantly anti-environmental Administration. However, public opinion has been shifting over the past few years as the effects of climate change become increasingly apparent and stories of climate litigation appear in the media more frequently. This means that juries will also be changing their views – as well as judges.
It may be too late to mitigate the effects of climate change, and we can expect no help from the legislature nor the executive branch. However, there is hope that the industries that caused the problem will be held accountable through the judiciary.