Legal Strategies Abound as Climate Liability Trend Becomes a Wave
2018 was the year when the climate liability trend became a wave, with actions from New York City to France to the Philippines and Colombia putting the fossil industry under pressure to take responsibility for the climate impacts of its product.
“What was remarkable in 2018 was the rapid acceleration in the number of cases,” said Carroll Muffett, president of the Center for International Environmental Law. “It’s clear that this is a genie that neither the governments nor the companies can put back in the bottle at this point.”
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“From litigation to investigations, the strategies for holding the world’s biggest carbon polluters, including governments and corporations, accountable for climate damage are diverse and growing,” Climate Liability News reports. “They include suits to hold fossil fuel companies responsible for the climate damage done by burning their products and force them to pay for the costs of those damages. Others are trying to require governments to strengthen climate policies to protect their citizens.”
As well, “new avenues are being opened, including human rights arguments and even an industryimperiled by climate change taking on the fossil fuel industry,” CLN notes. “Together, they are creating optimism among climate activists that legal channels can make progress in fighting the climate crisis.”
InsideClimate News sees the same trend taking shape. “The past year saw a surge in new lawsuits filed against fossil fuel companies, and major developments in cases pressing governments for action in the United States and abroad,” InsideClimate states. “A climate denier is in the White House, pushing policies that will boost emissions. Congress is doing nothing to stop him. So citizens and local governments who are facing the impacts of rising seas, worsening heat waves, and extreme weather are increasingly looking to the courts for help.”
And Michael Gerrard, faculty director at Columbia University’s Sabin Center for Climate Change Law, pointed to a benefit beyond the courtroom. “Lawsuits, even if unsuccessful, can help shape public opinion,” he told ICN. “Mr. Scopes lost the monkey trial, but it led to a lot more awareness about the issue of teaching evolution.”
One United Nations report identified 654 climate liability cases in the United States as of March 2017, and another 230 in other countries, CLN writes. International highlights include the landmark Urgenda Foundation case, now under appeal to the Netherlands Supreme Court, which would require the national government to adopt more ambitious targets, and an investigation in the Philippines to determine whether fossils violated human rights by knowingly contributing to climate change.
The two publications go through similar lists of lawsuits initiated by cities, U.S. state governments, several different countries, and a variety of non-government plaintiffs. CLN recounts the continuing delays facing Juliana v. United States, which pits 21 youth plantiffs against the U.S. government, and cites the class action recently launched by Montreal-based ENvironnement JEUnesse (ENJEU) on behalf of Quebecers under 35 years of age.
Climate Liability News says 2019 will be the year when several pending cases begin bringing substantive evidence into public view. “That’s going to be the real sea change in this work in 2019,” Muffett told CLN. “The findings from the Philippines are going to come out, and more of these cases are going to move from the procedural battles to actually engaging on the merits.”
But InsideClimate News distinguishes between the new, untried legal arguments that are beginning to emerge and the more conventional courtroom strategies in other cases.
“As cities, states, and citizens press the courts to address climate change with novel legal arguments, dozens of more conventional lawsuits continue to churn too, challenging oil pipelines and coal facilities for their greenhouse gas emissions and the Trump administration as it rolls back the nation’s climate regulations,” InsideClimate notes. “Legal experts say the unconventional cases, whether cities suing oil companies, children suing the government, or a state suing Exxon for fraud, may face skepticism from judges, and it’s far too early to say what effect they will have.”
“Lots is happening, lots of boom and bang,” Patrick Parenteau, senior counsel in the Environmental and Natural Resources Law Clinic at Vermont Law School, told ICN. “But the carbon keeps going up and up. There you have it.”