Despite Lack Of Success, Climate Change Litigation Is On The Rise

Gun Rights

California’s litigation against major oil companies is the latest in a series of cases seeking damages for climate change. Despite lack of notable success, climate activists continue to pursue litigation in hope of pushing back on the impacts of climate change and changing societal behavior.

The use of the courts to effect societal change is not a new concept. Issue proponents often use a multiprong approach to accomplish goals. Congress is a slow-moving entity and change can take years or decades for even a minor change. Well organized advocacy groups shift their focus to the state level, where legislatures are more nimble. Start in states that are friendly to the change, then work your way around the country. This strategy has been effective for both the left and the right on an array of issues. The National Rifle Association effectively pushed the concept of constitutional carry, or the ability to carry a firearm without a permit, at the state level until a majority of the states adopted it within a few short years. Medical marijuana advocates used the same approach.

While the legislative process unfolds, the use of the courts is an alternative approach. The legislature writes law, the courts interpret it and compare it to the constitution. While we like to convince ourselves that there is a single interpretation of a law or constitutionality, varying prospectives and approaches can reach drastically different confusions. As the composition of the Court changes, so do the outcomes. There are no legal absolutes. Slavery was once legal, as was segregation. There as no national standard for abortion until Roe v. Wade, then the responsibility to make that decision was pushed back to Congress and the states in Dobbs.

The debate of environmental activism, climate change, and sustainability is following a similar path. While the Securities and Exchange Commission prepares to release environmental, social, and governance reporting standards for publicly traded companies, a battle over ESG is occurring at the state level. In right leaning states like Florida and Texas, legislatures are passing laws that prohibit the consideration of ESG factors in funds. While California recently passed legislation that will require ESG reporting for large companies by 2024.

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Simultaneously, California’s attorney general has initiated a big tobacco style lawsuit against five oil companies for downplaying the impacts of fossil fuels on climate change. It is their intent to use any money won in the litigation to create a fund to pay for recovery from extreme weather events and resiliency efforts in the state. While I expect the state to have some early success in courts, it is my opinion the case will eventually fail, most likely because of standing.

Standing is the legal issue that has plagued most climate change cases. Standing is the ability of somebody to bring a lawsuit. The specific elements differ from jurisdiction to jurisdiction, and depending on the type of case, but broadly comes down to three things: (1) Was someone injured, (2) did the other party cause the injury, and (3) can the court do anything to make it right.

In the Big Tobacco case, the injury was individual smokers getting cancer. The tobacco companies caused the cancer through deceptive marketing aimed at getting people to smoke. Action caused harm.

The same cannot be said for climate change litigation. The first issue is always establishing who was injured and how. The impacts of climate change are not specific to an individual, and the actual injury is hard to measure. It is a concept. Assuming greenhouse gas emissions cause the average temperature to increase to a point that it changes weather patterns, it is impossible to measure how an individual is specifically harmed.

Even if a specific injury is established, who caused it? It may seem easy to blame oil companies, but which one and to what extent that it was a significant contribution? If you cannot point to someone and say they caused it, there is no case.

So far, no one has successfully done this in climate litigation. Juliana v. US, where children sued the government for not taking action to prevent climate change, was dismissed for lack of standing. Client Earth v. Shell, a derivative suit that accused the board of directors of violating their fiduciary duty by not doing more to prevent climate change, was also dismissed.

Climate activists did have one notable win in Held v. Montana, where the court found that Montana officials enacted policies favoring the fossil fuel industry and violated the citizens’ right to a healthy environment. However, that case was won based on the language in the state constitution that is only found in two other states.

Despite the loses, climate related litigation is increasing, as is evident in the California case. The prevalence of such cases has reached a point that questions are being raised over third-party litigation funding, the practice of outside organizations paying the legal bills for a lawsuit.

This is not unique to the US. Client Earth v. Shell was brought in England. Duarte Agostinho and Others v. Portugal and 32 Others, alleging that the countries enact policies that caused heatwaves affecting the applicants’ living conditions and health is currently being heard before the European Court of Human Rights. The United Nations General Assembly sought an advisory opinion from the International Court of Justice as to the legal liabilities of member states for climate change under international treaties.

While countries struggle with the legislative approach to climate change, climate activists will continue to fight the battles in court. Each approach is slightly different, but continue to be unsuccessful. However, like any substantial change, all it takes is one court opinion to move the scale.

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