I have written regularly over the past 18 months about the rising number of environmental lawsuits being filed each year in US and foreign courts. (see Figure 1) In each of the dozen or more articles, I have consistently stated:
- hyper-partisanship is preventing the legislative branch of government from consistently and constructively acting to combat global climate change;
- the executive orders and directives of one president can easily be rescinded by the next;
- the first two circumstances are making the courts the go-to venues in which both deniers and defenders have come to debate climate-science and to set national environmental policy; and,
- the judiciary is reactive, not pro-active in its decisionmaking, and of the three branches of government is the least-suited to crafting and carrying out an environmental policy capable of protecting the nation from the ravages of global warming.
Today, I would like to focus more forcefully on the last of these four bullets—why winning in the court will not win the war on climate change—than I previously have.
I do this not to suggest anyone should refrain from pursuing their government given-right to seek redress for their and Nature’s grievances nor to diminish the importance of doing so. The fact is winning in court is not all it’s cracked up to be given the length of time it takes for a case to be decided and judicial orders to be enforced, the possibility of reversals of lower court decisions by appellate courts, and the political vulnerability of all judicial decisions even those of the US Supreme Court (SCOTUS).
Before getting into the substance of the argument, permit me to declare the only proper conclusion that should be drawn from it—
Judicial decisions that favor climate defenders, in whatever guise, e.g., constitutional protections, compensation under tort laws, or in defense of civil disobedience [i], will fail to keep the rate of global warming within habitable bounds unless and until they lead to an aggressive and stable national integrated energy and environment policy.
Judicial limits are as much practical as theoretical. Consider, for example, who can sue. Although courtroom doors are theoretically open to everyone, once through them, plaintiffs must establish their right to proceed to trial.
Plaintiffs—like the 21 youths in the Juliana case involving the US Constitution or the states, cities, and counties in common law nuisance-tort cases like the People of the State of California v BP P.L.C., et al.—must meet specific eligibility (standing) requirements. There are four threshold questions a federal court must ask and answer in the affirmative to confirm the plaintiff’s right to sue:
- Has the plaintiff suffered an actual injury or harm?
- Is the harm suffered traceable to the actions of the defendant?
- Is the harm suffered capable of redress by the court?
- Is there a justiciable controversy according to Article III, Section 2 of the U.S. Constitution?
Should any of the four not be answered in the affirmative the court will refuse to proceed. State courts apply a similar set of threshold questions.
Once allowed to plead their case, plaintiffs can expect to encounter many months—even years—of delay before a final verdict is rendered. The more complicated the case, the more time can be expected to pass before a final decision is made. The Juliana case, for example, was first filed in September 2015. (see Figure 2).
The case will undoubtedly end up before the US Supreme Court (SCOTUS) no matter what any lower court decides. Given that the trial in the case won’t begin until the end of October 2018, it is reasonable to assume that SCOTUS will not issue its ruling much before the end of 2019.
If I were advising the Trump administration, I would recommend a series of stall tactics, e.g., requests for continuances and repeated motions to dismiss, to prevent any final decision being made before the 2020 presidential elections.
“Time—in relation to the need to combat climate change—is of the essence; it is also one of the fundamental problems with looking to the judiciary as a surrogate for the executive and legislative branches.”
The recent spate of climate cases seeks to establish new causes of legal action, e.g., creating new constitutional protections and applying common tort law to corporate carbon emissions.
The legal principles involved are complicated and mostly untested as the basis for environmental suits. Judges are loathe to suddenly take the law in new directions. The stability and acceptability of our legal system owe much to the concept of stare decisis. The phrase translates–to stand by things [already] decided.
The doctrine is neither flawless nor immutable. There are times when a court will decide the precedential basis of prior decisions is unworkable or so unjust as to warrant being abruptly overturned:
…the Constitution precludes the Court from exercising its overruling power as a matter of unbridled discretion…[and] constrains a Court’s power … as it constrains every other exercise of governmental power.
To put the strength of the stare decisis doctrine into some perspective, consider Roe v. Wade (abortion) or Obergfell v. Hodges (same-sex marriage). These landmark decisions by SCOTUS have faced political and legal challenges by conservatives from the moment the decisions were announced. Trump’s elevation to the presidency has only served to stoke conservative fires.
Largely due to stare decisis, these decisions still stand. Just as what went before continues to keep the courts from suddenly striking down a citizen’s right to an abortion or to marry whomever they like, the absence of precedents acts as a governor on the speed with which new rights or remedies are granted or created.
Should Juliana (or any of the growing number of similar cases at the state level) be decided in favor of the plaintiffs, the pendulum of a new timepiece would be set in motion. A finding that the federal government must do something to slow—if not halt—greenhouse gas (GHG) emissions would require drafting and implementing sets of regulations.
At a minimum, the required regulations would be a new Clean Power Plan (CPP). What would more likely be required is a CPP on steroids—given the advancement of our understanding of the rate at which the climate is actually changing, and the time it would take to draft and defend a new set of regulations–accompanied by equally juiced water rules, industrial and auto emission standards et al.
How much stricter would these new sets of regulations need to be? It too depends on time and timing.
Conservatively, I would estimate that a SCOTUS 2021 decision in favor of the Juliana plaintiffs could not be put into force by the government before 2028. Between now and 2028 it is estimated that Earth will have warmed an additional 0.3 degrees Celsius or approximately 1/5th of 1.5 degrees Celsius considered to be the threshold beyond which Earth’s warming becomes extremely problematic for all living things.
Three of the four criteria that determine the standing to sue have to do with the harms the plaintiff(s) may have suffered because of the defendant’s action or inaction. The Juliana plaintiffs are alleging the government’s failure to act on its knowledge of the causes and consequences of climate change, as well as acting to abet GHG emissions in its support of fossil fuels, e.g., subsidies and the leasing of federal lands for exploration and extraction.
In the tort cases being brought by states, e.g., New York v. BP P.L.C and the earlier referenced California v BP, counties, and cities are treading a path similar to the one followed in the 1990s tobacco cases. The government plaintiffs are claiming that the oil companies knew about the climate consequences of extracting and using petroleum but continued to carry-on their corporate activities.
Climate science has come a long way—even since the case of Massachusetts v EPA (2007) in which SCOTUS indicated that if the EPA determined that anthropogenic GHG emissions were prompting the Earth to warm and that such warming was harmful to human health, then the Agency must regulate tailpipe emissions. Today the only people denying the connection are Trumpstefarians and some persistent fossil fuel interests who stand to gain by killing off the rest of us.
Ironically, plaintiffs in the California v BP case have admitted in open court that GHGs are causing Earth’s climate to change and that the change is injurious to nature and society. Notwithstanding their admission, however, the defendant oil companies are alleging the lack of applicable legal precedents and the court’s authority and ability to redress those harms based on the facts of the case(s).
Even with the near-unanimous belief in the causes and harmful consequences of climate change, the courts remain a long way from finding government and corporate defendants legally liable for their actions. In most of the constitutional rights and torts cases, defendants are arguing that their actions—alone—are not causing the alleged harms to the plaintiffs.
The “we are not alone” argument is being used to address both the traceability of the defendant’s actions to the harms suffered by the plaintiff and the ability of the court to redress those harms on the back of only one contributor. (Bullets 2 and 3 of the list of threshold/standing questions above.) The Juliana trial court dismissed the government’s claim when it granted the plaintiffs’ standing to sue.
Contributory negligence has been dealt with in numerous personal injury (torts) cases—both regarding a defendant’s guilt or innocence and the amount of damages to be awarded. How the “we weren’t the only ones” defense will ultimately play out in climate cases is another matter.
Redressability for the plaintiff’s injuries is not merely a legal question. There are very practical considerations that will undoubtedly play into the court decisions.
The Juliana plaintiffs have suggested a variety of ways in which their injuries can be redressed including:
- Enjoining the federal government from further violations of the Constitution, e.g., rescinding regulations that support/encourage the exploration, extraction, and use of fossil fuels.
- Ordering the Trump[ii] administration to prepare a consumption-based inventory of U.S. C02 emissions for the purposes of preparing and implementing an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric C02 to stabilize the climate system and protect the vital resources on which plaintiffs now and in the future will depend.
These types of orders, although requiring a broad and undoubtedly costly revamping of the entire US regulatory structure, are in-line with what the federal government does. The changes would be subject to public inputs in accordance with the APA and can be phased-in over time.
It should be noted that an increasing number of Juliana spinoff cases are being brought against state governments. These cases are based on the same constitutional principles as Juliana and are asking for much the same relief. These cases add another layer of theoretical complexity, i.e., is climate change appropriately a federal rather than state matter for its impact and the impact of state environmental regulations on interstate commerce? States like Alaska and Pennsylvania have also expressed the practical difficulty it would have in just meeting the reporting requirements given limitations on state personnel and budgets.
The awarding of damages in these types of tort cases would be unprecedented and presents much thornier practical problems that would need to be resolved. A decision in favor of the state and local municipalities would open the door to hundreds of new lawsuits not just against the oil companies but manufacturers, utilities, coal companies, automakers and a host of others.
Assuming that the damages each contributor was responsible for could be established, the awards would likely sink even the wealthiest companies. Eight of the largest oil companies doing business in the US had combined revenues of $1.22 trillion. Sinking those companies would damage the economy; sink the myriad other companies that could be brought in would deep six the US economy. Even if damages weren’t awarded a court would likely be obligated to issue cease and desist orders to stop further damage—no company operations, no jobs.
There is also the issue of the companies engaging in activities encouraged by the federal government. As Judge Alsup pointed out recently in California v BP f the nation is saying ‘please do it,’ how can we hold them [the oil companies] liable for that? It was in the earlier briefing of Judge Alsup that the defendant oil companies admitted the causes and consequences of climate change. If governments were held liable—partial or otherwise—does that mean they too would be forced to pay out trillions of dollars in damages?
Climate-science deniers, conservatives, and more than a few industrial concerns have accused the plaintiffs and attorney in the tort cases of being “ambulance chasers” out to make a buck at the expense of private companies. Even the youthful plaintiffs and their attorneys in the Juliana cases have been subjected to some very harsh and uncivil comments by the usual gaggle of anti-environmentalists. The judges in these cases have hardly been spared these diatribes.
These cases are hardly specious given the courts’ strict rules of standing—not just at the trial level but at the appellate level as well. Getting through the court system, however, is no guarantee of victory. It is often forgotten that the courts—including SCOTUS—are not immune from political attacks and not just of words.
Federal courts can and have been stripped of their authority by Congress:
“Jurisdiction stripping” refers to the Congressional power to restrict the jurisdiction of the courts. The power is derived from Article III, Section 1 of the U.S. Constitution, which states that “[t]he judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Accordingly, lower federal courts are courts “of limited jurisdiction, possessing ‘only that power authorized by Constitution and statute.” Since Congress possesses the power to create lower federal courts and establish their respective jurisdictional powers, by implication, it also holds the power to withdraw jurisdiction. And, of course, if the lower federal courts lack jurisdiction to hear a particular matter, the Supreme Court does as well (the caveat being issues which invoke the original jurisdiction of the Supreme Court).
State courts do have the power to hear federal claims. However, that too may be subject to Congressional restriction under certain circumstances. Congressional stripping-authority is not unlimited; however, it could prove very problematic in the future for the growing number of emerging environmental law cases. This is especially true in the current era of hyper-partisanship and pejorative politics.
Does this mean that there is no winning these cases or that they will prove a waste of time and resources even should they win? Not hardly.
These cases are minimally establishing the credibility of the preponderance of evidence about the causes and consequences of climate change. Deniers like the Trump administration are admitting the veracity of the science in courtrooms that they are dismissing in less exacting venues, e.g., before TV cameras and Congressional committees.
Beyond the legal issues involved, these cases can serve as a lever to move the ponderous weight of partisan politics towards what the plaintiffs in these cases really want and what the nation needs—a stable and integrated national energy and environment policy.
In the coming weeks look for my analysis of how these emerging cases can win in the court of public opinion long before a final verdict is rendered in a court of law.
[ii] Or whatever administration is then in power.
Lead image credit: Whale mouth over midtown Mahattan 15 May @vonbrachel/Twitter