By Maribel Moses | Articles Editor

December 20, 2023

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On June 23, 1988, the director of NASA’s Institute for Space Studies stated, “Global warming has reached a level such that we can ascribe with a high degree of confidence a cause-and-effect relationship between the greenhouse effect and observed warming . . . .[T]he greenhouse effect has been detected, and it is changing our climate now.”[1] In the early 1990s, climate scientists established 2° Celsius (C) as the maximum level of warming that could occur without “pushing the whole climate system outside the range we’ve adapted to.”[2] Despite warnings by scientists that global warming of more than 1.5°C would “push some Earth systems past dangerous and irreversible tipping points,” the current U.N. report released just before COP27 indicates the world is on a path to heat between 2.1 and 2.9°C.[3] Once a tipping point is reached, the rate and severity of natural disasters will not gradually get worse along the same trajectory. They will immediately and drastically become much, much worse.[4] While scientists have sounded the alarms for over 30 years, the United States Congress sat idly by—cementing a future of self-destruction.[5] The world’s leading climate scientists have warned that we have less than a decade to curtail global emissions before global warming reaches catastrophic levels.[6]

While the 1970s experienced a proliferation of progressive environmental legislation, the Clean Air Act amendments of 1990 marks the begging of a 32-year failure by the United States to substantively address the growing threat of climate change. In light of congressional inaction, private citizens, special interest groups, non-profit organizations, stakeholders, and government actors alike have orchestrated lawsuits seeking solutions to climate change.[7] According to James Hansen, a prolific climate scientist with NASA, compensatory litigation is the best way to hold carbon majors accountable “[u]ntil governments make them do so by implementing carbon fees or taxes . . . .”[8] Similarly, the economist and director of the Earth Institute at Columbia University and UN special adviser, Jeffrey Sachs, “urges citizens to pursue major polluters and negligent governments for liability and damages and ‘flood the courts’ with legal cases demanding the right to a safe and clean environment.”[9]

Climate litigants have filed suits taking many different forms. There have been cases challenging agency decisions,[10] cases seeking damages from carbon majors using federal common-law claims,[11] cases seeking injunctive relief or recognition of constitutional rights,[12] and cases seeking damages from fossil-fuel companies using state-tort law.[13] Aside from Massachusetts v. EPA—by all accounts, a climate victory—few climate-change litigants have seen success (or have even had their claims heard on the merits). In fact, courts across the United States, including the Supreme Court, have all about put the kibosh on each of the aforementioned climate-change claims—except claims using state-tort law.

Attorneys general across the United States are bringing suits against fossil-fuel companies using state-tort law, seeking compensation from climate change damages. The problem with these cases right now is the lack of consensus regarding jurisdiction. While states believe their claim belongs in state court because each state experiences the impacts of climate change differently, industry believes the state court system is ill-equipped to adjudicate climate change, which is a global affliction. The Supreme Court granted a writ of certiorari for a state-law case against 21 fossil-fuel companies, but did not settle the matter of jurisdiction. State-law-climate-change cases are the closest that litigants have come to pinning liability of climate change on the industry responsible for causing it. However, it is unlikely these cases will yield success until (1) jurisdiction is figured out; and (2) causation can be linked to the fossil-fuel industry. Until then we are at a stale mate.

The problem here is that the deadline to prevent catastrophic impacts from climate change is slipping through our fingers, and the courts are still scratching their heads sorting out jurisdictional issues. The stall in deciding this very narrow jurisdictional issue captures the very problem with utilizing litigation as a solution to climate change: we are running out of time. Either way, the courts will eventually decide jurisdiction once and for all. If federal, the claims will be displaced by the Clean Air Act and dismissed. If they decide the claims should be in state court, then state courts will determine the justiciability of the claims—and more likely than not—will hold that climate change embodies a political question and is thus, not justiciable.[14] If, however, science improves enough for courts to establish causation, it is possible that fossil-fuel companies will reach individual settlements with states to cover the cost of damages.

In states where this does not occur, establishing causation will allow a new wave of litigation: insurance subrogation claims. Eventually, climate change will bankrupt insurance companies, who, in 2018, paid over $90 billion worldwide to policyholders impacted by increased natural disasters[15]. Either that, or insurance companies will refuse to cover damages associated with climate change. In either case, the cost of climate change will fall on insurers or insureds—and not those at fault. Eventually, insurance companies may pursue litigation against fossil-fuel companies with the same zeal that state-and local governments and private citizens pursue litigation today.

The bottom line, though, is climate change is going to be expensive and its cost should not fall on those least responsible. Whether the courts present inaction is the result of principled judicial procedure or a myopic interest in maintaining the status quo, we are less than a decade away from calamitous disruption.  Until then, let’s flood the courts. Until the courts buck up and respond to an extraordinary situation with extraordinary measures, climate change litigation will, and should, endure as a form of desperate and defiant protest.

 

[1] Robert Brulle, 30 Years Ago Global Warming Became Front-Page-News – and both Republicans and Democrats Took it Seriously, Conversation (June 19, 2018), https://theconversation.com/30-years-ago-global-warming-became-front-page-news-and-both-republicans-and-democrats-took-it-seriously-97658.

[2] Ezra Klein, 7 Reasons America Will Fail on Climate Change, Vox (June 5, 2014), https://www.vox.com/2014/6/5/5779040/7-reasons-America-fail-global-warming.

[3] Bob Berwyn, Is COP27 the End of Hopes for Limiting Global Warming to 1.5 Degrees Celcius?, Inside Climate News, (Nov. 18, 2022), https://insideclimatenews.org/news/18112022/is-cop27-the-end-of-hopes-for-limiting-global-warming-to-1-5-degrees-celsius/.

[4] See Renee Cho, How Close Are We to Climate Tipping Points?, Columbia Climate Sch.: State of the Planet (Nov. 11, 2021), https://news.climate.columbia.edu/2021/11/11/how-close-are-we-to-climate-tipping-points/. A tipping point is a point that, when crossed, will trigger changes to earth’s climate system, which will cascade into a perpetuating cycle of irreversible and drastic effects. Id.

[5] In fact, in his book They Knew, James Gustave Speth articulates how the U.S. Federal Government not only knew about the risks of climate change and what was causing it, but actively endorsed and promulgated policies that promoted increasing the consumption of fossil-fuels. James Gustave Speth, They Knew: The U.S. Federal Government’s Fifty-Year Role in Causing the Climate Crisis, 151 (2021); But see Inflation Reduction Act of 2022, Pub. L. No. 117–169, 136 Stat. 2028.

[6] See Jonathan Watts, We have 12 years to limit climate change catastrophe, warns UN, Guardian (Oct. 8, 2018), https://www.theguardian.com/environment/2018/oct/08/global-warming-must-not-exceed-15c-warns-landmark-un-report.

[7] Grace Nosek, Climate Change Litigation and Narrative: How to Use Litigation to Tell Compelling Climate Stories, 42 Wm. & Mary Env’t L. & Pol’y Rev. 733, 736 (2018).

[8] Jonathan Watts, ‘We Should be on the Offensive’ – James Hansen Calls for Wave of Climate Lawsuits, Guardian (Nov. 17, 2022), https://www.theguardian.com/environment/2017/nov/17/we-should-be-on-the-offensive-james-hansen-calls-for-wave-of-climate-lawsuits.

[9] Geetanjali Ganguly et al., If at First you Don’t Succeed: Suing Corporations for Climate Change, 38 Oxford J. of Legal Stud. 841, 842 (2018).

[10] Massachusetts v. EPA, 549 U.S. 497, 497 (2007).

[11] See e.g., Native Vill. Of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).

[12] Juliana v. United States, 947 F.3d 1159, 1170 (9th Cir. 2020).

[13] See e.g., Boulder County et al. v. Suncor and Exxon, 25 F.4th 1238, 1246 (10th Cir. 2022).

[14] See Constitutional Issues – Separation of Powers, NATIONAL ARCHIVES https://www.archives.gov/education/lessons/separation-powers (last updated Oct. 10, 2016).

[15] Kaitlin Sullivan, Could Insurance Lawsuits Against Big Oil be the Next Wave in Climate Liability?, Climate Docket (July 18, 2019), https://www.climatedocket.com/2019/07/18/insurance-lawsuits-climate-liability/.