There are currently 1,023 climate-related law cases listed on the Litigation Chart managed as a joint project of the Sabin Center for Climate Change Law at Columbia University and Coland Arnold and Porter Kaye Scholer, LLP. In 2016 the number of all the US domestic climate lawsuits on the database was 873[i],[ii]

The rising number of cases is mostly a matter of politics. Believers and deniers of global warming fall largely along party lines, according to the Pew Research Center. Representative of the yawning divide between the parties is the Trump administration’s dedication to undoing all of President Obama’s environmental legacy for no reason other than it is Obama’s legacy. The cycle has been repeated before as Clinton’s generally pro-clean energy and environmental administration was followed by Geo. W. Bush’s which was considered the least favorable of modern times–a designation that now passes to the Trump administration.

In the past week or two Trumpsters gave climate defenders new reasons to take the Administration to court—of either the legal or public opinion variety. Before letting you in on what types of cases have the best chance of winning in court, I want to update what the Cabal currently in charge of the federal government is up to these days—climate-wise.

1. The Environmental Protection Agency (EPA) is looking to make it easier for coal plants to release mercury into the world where the powerful neurotoxin has been known to damage the brains of infants and children. To accomplish the task, the Administration is proposing to recalculate the costs and benefits of the existing Obama era rule. As is usual for the Trumpsters they are heavily discounting the benefits side of the equation and inflating the cost to coal-fired power plant operators.

The proposed rule change is a slight of hand intended to help coal producers stay in the game—whatever the consequences to the rest of us. If EPA is allowed to get away with the move, it could insulate coal-fired generating plants from the risk and technology review required under Section 112 of the Clean Air Act (CAA). The review is meant to determine whether remaining levels of hazardous air pollutants continue to pose unacceptable risks to public health.

2. Speaking of children. It is being reported that the White House Office of Management and Budget (OMB) removed several paragraphs discussing climate change from a proposed rule developed by the Environmental Protection Agency. The draft rule would drop restrictions on the release of the heat-trapping, ozone-destroying chemical known as HFCs. The proposed language would strike portions of the existing regulation that reads:

Certain populations and life stages, including children, the elderly, and the poor, are most vulnerable to climate-related health effects. The 2016 assessment The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment describes how children’s unique physiological and developmental factors contribute to making them particularly vulnerable to climate change. Impacts on children are expected from heat waves, air pollution, infectious and waterborne illnesses, and mental health effects resulting from extreme weather events.

Replacing it with language that reads:

Within communities experiencing adverse impacts related to climate change, certain parts of the population may be especially vulnerable, including low-income populations and indigenous peoples. Therefore, these populations may be disproportionately impacted by the increased emissions of GHGs due to this rule.

The draft language appears to conflict with earlier reports that the Cabal was looking favorably on the Kigali Amendment to the Montreal Protocol. The amendment phases out HFCs. It seems the word got out that the Heritage Foundation wasn’t too keen on doing away with this particular greenhouse gas and lobbied the White House to keep it around.

It should be noted that many in the air conditioning, refrigeration, thermal insulation, aerosols, medical, fire suppression, semiconductors and other industries that utilize fluorocarbons are in favor of the US signing onto the Amendment. A group of 30 executives and CEOs in the industry sent Trump a letter in July 2018 urging him to submit the amendment to the Senate for ratification. The missive indicates the amendment would add 33,000 US manufacturing jobs to the economy and increase exports by $5 billion. Hopefully, The Big D will find this letter as loving and dreamy as the ones he is getting from Kim Jong-un and ask the Senate to approve his signing the nation onto the Amendment.

3. We’re all going to fry anyway so let’s just keep polluting why don’t we? The Administration is proposing to freeze auto emission standards at the 2020 level. As required by the National Environmental Policy Act (NEPA), the National Highway Traffic Safety Administration (NHTSA) has prepared an environmental impact statement to accompany the proposed freeze.

Buried deep in the document is the Administration’s prediction that by 2100 Earth will be experiencing a temperature rise of 7 degrees Fahrenheit or about 4 degrees Celsius—way past the 1.5 to 2.0 degree Celsius threshold most of the science community believes will lead to severe, pervasive, and irreversible changes

Where many see a problem and want to solve it, NHTSA was saying “what the Hell, we’re all going to melt from the heat so why bother upping fuel efficiency targets?” No doubt, NHTSA was following the White House’s lead on this.

I’m sure we all sleep better at night because of Donald Trump’s very, very large brain.

4. Cross-state air pollution. EPA says it lacks sufficient evidence that upwind states and sources are significantly contributing to the downwind states’ problems with ground-level ozone, or smog. In response to multiple requests from the states of Maryland, Delaware, and Pennsylvania EPA released a 111-page denial notice.

Similar to the request of other down-wind states Maryland’s petition asked EPA to require about three dozen plants in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia to run their already-installed pollution control equipment during the summer months.

Some kinds of climate-related lawsuits have a better chance of winning than others

The study, “Strategies in and Outcomes of Climate Change Litigation in the United States,” published in the journal Nature, climate change is the most detailed analysis yet done of the more than 1000 climate-related cases on the Sabin Center database. According to the study the most common environmental issue brought before the courts involve coal-fired power plants, although novel legal theories, e.g., public trust and tort, are being put forward with increasing regularity.

The first barrier to bringing a lawsuit against the government is the matter of standing. The rules of standing require a plaintiff to have suffered an actual injury or harm, traceable to the actions of the defendant, and capable of redress by the court. Lawsuits on behalf of the world don’t work no matter how noble the cause. For this reason, environmental non-governmental organizations (ENGOs), e.g., the Natural Resources Defense Council (NRDC), often join with local organizations in bringing suit.

Businesses and their industry organizations, e.g., National Association of Manufacturers (NAM), generally find it easier to claim standing on the basis of regulations eating into profits. Coalitions, whether of a diverse mix of business or community groups, can prove advantageous for plaintiffs. According to the authors of the Strategies study, nearly 60 percent of the cases analyzed involved one or more plaintiffs, and over 45 percent of the cases had more than one defendant. The percentages include intervenors.

Most pro-regulatory cases are brought by ENGOs, while private sector trade and business groups generally litigate to reduce regulation. Suits brought by pro-regulatory litigants win most frequently when challenging legislative Acts, i.e., Clean Air, Endangered Species, California Environmental Quality, and Administrative Procedures.

Federal courts have a tendency to favor anti-regulatory lawsuits over those seeking greater regulation. Environmental and business groups moving against state governments lose more often as state courts frequently defer to the judgment of state officials. Similar data from federal cases involving the Chevron deference was not found.

It appears from a review of the cases in the database that plaintiffs engage in a bit of forum shopping. The study’s authors found that differences among state laws relating to climate change and the receptivity of specific judges to prior climate-related lawsuits drove the selection of where to file suit. Forum shopping is likely to increase as more of Trump’s federal court nominees are confirmed.

Although a small percentage of climate-related cases, renewable energy and biodiversity suits have higher win rates than pro-regulatory litigation focused on coal-fired power plants. Anti-regulatory claims against renewable portfolio standards and renewable fuels have typically failed as courts have consistently held that these programs neither discriminate nor interfere with interstate commerce.

The Constitution’s Commerce Clause has until recently been the constitutional element most often cited in environmental cases. Based on cases already decided, courts have rarely recognized substantive due process claims except in limited circumstances. Juliana v. US may change all that should it succeed.

The Juliana petitioners are alleging the federal government is violating “their fundamental constitutional rights to life, liberty, and property by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere, and that, in so doing, defendants dangerously interfere with a stable climate system required by our nation.” 

The case has spun off a number of similar suits in state and federal courts.

The Juliana plaintiffs are also alleging that the federal government has a trustee’s obligation to protect public lands and other of the nation’s natural resources. Most of the time public trust cases are won by anti-regulatory litigants. So far, these cases, along with other common law nuisance (tort) petitions, have resulted in the fewest pro-regulatory case wins.

Federal public trust claims are difficult for plaintiffs to win for two reasons. One is the same causation issue that makes it difficult for plaintiffs to prevail in common law nuisance cases. The other is that public trust has historically had a rather narrow scope as it mostly dealt with the preservation of coastal land for public use.

To date, a majority of cases involving the US Constitution have been about the Commerce Clause. These anti-regulatory claims have generally failed as courts have held that state programs like renewable portfolio standards do not discriminate against interstate commerce.

The Juliana trial is scheduled to start on October 29, 2018; it will be the first time science is on the witness stand. Defendants in a felony trial in a Minnesota court have been given the go-ahead to present scientific evidence of climate change as a justification for their criminal acts. State v. Klapstein is referred in the press as the “valve turner” case.  Klapstein and three others are facing ten years in prison for shutting down a pipeline owned by the Canadian company Enbridge Energy. The defendants are hoping to convince 12 jurors that it was necessary to shut down the line to avoid an even greater harm from occurring. The necessity defense has been put forward in other valve turner cases without much success.

My lawyerly advice is to think twice about following in the footsteps of Klapstien before shutting down any pipelines in your neighborhood. I have the utmost respect for the “valve turners” putting their beliefs on the line as they have. It takes real grit to do what they did. For as long as Trump is in the White House, however, the possibility of a pardon is slim.

Unless and until the legislative and executive branches of government find a way to get past the partisanship that divides the nation the judiciary will remain the go-to venue for defending the environment and combating global warming. In the final analysis what ails Capital City is too much check and not enough balance.

[i] Some suits are active while others are decided.
[ii] U.S. courts are not the only ones being asked to play a bigger role in combaFfting global warming. The Grantham Institute has catalogued a rising number of cases in the 25 international jurisdictions where the data exists, e.g., UK, Netherlands, and Pakistan, since 1994, when cases were “few and infrequent.” In the mid-2000s the number began to rise by at least 10 cases a year. The Sabin Litigation database[ii] now shows a total of 282[ii] suits.

Photo by Sam Jotham Sutharson on Unsplash