Climate Change on Trial

Climate Change on Trial

We can’t just sue our way to climate justice, but litigation is one tool that activists can use to sway public opinion and hold those in power to account.

On August 12, twenty-one young Americans, led by the organization Our Children’s Trust, filed a lawsuit against the federal government. By now, President Obama is used to getting sued, but these were not his usual adversaries. Far from challenging his efforts to reform health care or immigration policy, these teenage plaintiffs were pleading for more aggressive action to address climate change. According to the complaint, Obama and a number of federal agencies are violating the youngest generation’s constitutional rights—to life, liberty, and property—by promoting the use of fossil fuels (through, for example, subsidies and leases of federal lands). The plaintiffs are asking the court to mandate a national plan to reduce atmospheric concentrations of carbon dioxide to 350 parts per million by 2100. Joining the suit is famed climate scientist James Hansen, representing his granddaughter Sophie.

Does the lawsuit have any chance of success? As it happens, a similar lawsuit recently triumphed in the Netherlands: in June, the Hague District Court ruled in favor of the environmental group Urgenda, ordering the government to cut the country’s emissions to at least 25 percent below 1990 levels in the next five years. The judges cited IPCC reports as well as the European Convention on Human Rights and the Dutch Constitution, which compels the government to safeguard the living environment. But the outlook for such a case in the United States is less rosy. We are not, of course, a party to the European Convention, and our Constitution makes no mention of the environment.

And yet, more than is commonly recognized, U.S. courts have played a critical role in the country’s fledgling response to climate change. There have been hundreds of relevant cases (at least 740, according to Columbia’s Sabin Center for Climate Change Law)—more than in all other countries combined. This is in part because Americans are exceptionally litigious. It’s also because of the glaring absence of legislation to address the crisis in a country that has contributed so extravagantly to it; environmental groups have resorted to litigation to some extent as a fallback plan in the face of total Congressional recalcitrance. The results, in contrast to the Dutch decision, have been piecemeal and inconsistent, opening some doors while closing others. But to the extent that the United States has any federal regulations on greenhouse gas emissions, they have emerged primarily from the crucible of the courts.

Given the complexity and reach of climate change, there are many potential legal avenues to pursue. Numerous cases have succeeded in blocking individual projects, such as coal-fired plants. While motivated largely by climate change, these have often explicitly relied on other legal grounds, such as well-established restrictions on industrial pollutants in the Clean Air Act and Clean Water Act. In a different vein, several plaintiffs have attempted to sue major polluters, such as ExxonMobil, on public nuisance grounds, a kind of tort law. So far, these cases have been dismissed. The constitutional argument advanced by Our Children’s Trust is another experiment.

The most consequential cases have been those that compel the government to implement existing laws in ways that take climate change into account. As a result, at this point, federal U.S. climate change policy grows almost entirely out of laws that were written at a time when carbon dioxide was more associated with Pepsi Cola than global chaos.

Updating the world’s strongest environmental laws

The flagship environmental laws enacted in the 1970s—including the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act (ESA)—are remarkably strong. Some environmental lawyers consider them, collectively, the strongest in the world. Not only are they written broadly, but they allow for “citizen suits.” This means that ordinary citizens can sue for enforcement of the laws without having to demonstrate personal injury in the same manner as would normally be required. (These provisions suggest another explanation for why the United States has seen such a disproportionate number of climate change cases.) Although this concept has been intensely debated, and by no means have all aspiring plaintiffs been granted standing, it does at least open up the possibility of many more lawsuits. Over the decades, litigation has been an indispensable tool in the green arsenal.

The broad language of these laws was meant to provide flexibility to future generations, to enable them to address shifting environmental challenges. The Clean Air Act, for instance, stipulates that the government “protect the public health” with an “adequate margin of safety,” and enables the Environmental Protection Agency (EPA) to list new pollutants. And the citizen suit provisions equip citizens to hold the government accountable for doing so. A number of plaintiffs have persuaded courts that these laws should consider climate change. As one expert put it in the new book Climate Change Litigation by law professors Jacqueline Peel and Hari M. Osofsky, “it’s not the law that has to change; we need the political will to actually implement it.”

The Supreme Court lent credence to this view in Massachusetts v. EPA (2007), ruling that the EPA has the authority under the Clean Air Act to regulate greenhouse gases. The Bush administration did virtually nothing to act on the agency’s affirmed authority, but the Obama administration has acted on a variety of fronts. In 2009, Obama announced a new national policy to increase fuel economy and reduce greenhouse gas emissions for all new cars and trucks sold in the United States. Timing was, in a way, fortuitous: the automobile industry was seeking a bailout, and Obama used this leverage to impose new standards. The program, which took effect in 2012, stipulated that car manufacturers increase average fuel economy by 5 percent a year until 2016; it has since been extended to 2025, and, according to government projections, will yield emissions reductions of about 6 billion metric tons over its lifetime—a little less than the total U.S. emissions in 2012. More recently, Obama has instructed the EPA to issue regulations for power plants, heavy-duty trucks, and airplanes. In early August, the administration announced its final Clean Power Plan, requiring the nation’s existing power plants to cut emissions by 32 percent from 2005 levels by 2030.

Predictably, the regulations have provoked lawsuits from industry as well as states. Subsequent Supreme Court decisions have so far been largely favorable to the EPA, but have recently pointed in a troubling direction. In Utility Air Regulatory Group v. EPA (2014), the Court mostly upheld the EPA’s actions, but struck a different tone than in Massachusetts v. EPA, warning the agency not to overreach. In the most recent case involving the Clean Air Act, Michigan v. EPA, the Supreme Court blocked some regulations. The case focused on mercury, not greenhouse gases, but the Court’s decision showed worrisomely little regard for the EPA’s expertise. Now, the Obama administration expects a torrent of lawsuits in response to the Clean Power Plan.

Obama’s executive actions, and the backlash against them, have made headlines. But meanwhile, an important but little-noticed body of litigation has developed under the aegis of the National Environmental Policy Act (NEPA), which requires federal agencies to assess the environmental impacts of their proposed actions (including projects that receive federal funding or permits). In these cases, the plaintiffs have argued that the environmental impact statements should take into account greenhouse gas emissions.

Intuitive as it may seem, this argument has not been taken for granted in the courts. Because of the tenuous connection between any given molecule of carbon dioxide and the impacts of global climate change, a court could plausibly argue that the effects of greenhouse gases from one project are too diffuse and too uncertain to merit inclusion—and some courts have in fact ruled in this manner. In the 1990 case City of Los Angeles v. National Highway Traffic Safety Administration, Ruth Bader Ginsburg, then a judge on the D.C. Circuit Court of Appeals, ruled that a small change in fuel economy standards did not warrant a full environmental impact statement concerning global warming, although it was a “close question.”

More recently, other judges have bought the argument. In Border Power Plant Working Group v. Department of Energy (2003), the court ruled that the department’s NEPA analysis for a proposed power transmission line in California should have taken into account the greenhouse gas emissions from power plants in Mexico that used the line. In another case, Center for Biological Diversity v. National Highway Traffic Safety Administration (NHTSA) in 2007, the plaintiffs sued the government for, among other things, failing to take carbon dioxide emissions into account in its establishment of fuel economy standards for pick-up trucks and SUVs. They won the case, and the agency duly set tougher standards. The court wrote that the “impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct.” Crucially, the court found that the global nature of climate change and the influence of actions beyond NHTSA’s control did not let the agency off the hook.

Granted, the significance of these rulings is debatable. NEPA entails only assessments, and does not mandate reductions in emissions. But these cases have helped to legitimate climate change as an issue to be reckoned with. (They’ve also helped to derail a number of heavily polluting projects.) As Peel and Osofsky write, NEPA cases have “created an expectation of litigation over projects that involve significant greenhouse gas emissions.” In addition to the direct orders for specific projects, this expectation has ripple effects in the form of “more indirect changes to corporate culture around project development.”

Cases involving other landmark laws, such as the ESA, have had less success, although there have been some encouraging moments. In 2005, the Center for Biological Diversity (CBD) petitioned to list the polar bear as endangered as a result of the effects of global warming. Under continuing legal pressure, the Bush administration did finally list the polar bear as “threatened” in 2008. But the listing has yet to translate into practical action on climate change. Another important decision, upheld on appeal in 2013, ruled that the question of whether the ESA was an “effective or appropriate tool” to address climate change was beyond the purview of the court. This decision has cooled efforts to use the ESA for now, but groups such as CBD have not given up on this legal avenue.

Why not just sue Big Carbon?

From 2005 to 2013, U.S. greenhouse gas emissions fell by 9 percent, and the new regulations should curb them further. But, with climate experts urging global emissions cuts of 8 to 10 percent per year—and the United States remaining a top polluter—it’s clear that bolder action is necessary. And when it comes to the courts, the most obvious recourse, to many, would be tort law—that is, suing major fossil fuel corporations, along the lines of spectacularly successful cases against Big Tobacco in the 1990s. This kind of lawsuit is sexier and more emotionally satisfying than statutory litigation. Nobody is going to make a movie about Massachusetts v. EPA. But despite some enthusiastic media coverage, this legal route faces serious obstacles. One challenge, again, is the tenuousness of the connection between the actions of a given corporation and any specific impacts.

But there’s an even bigger impediment—and ironically, it’s deeply intertwined with the biggest victory of climate litigation. In 2004, a group of plaintiffs, including eight states, sued a group of electric power corporations. In 2011, in American Electric Power Co. v. Connecticut, the Supreme Court ruled in favor of the corporations, 8-0, explaining that because the EPA has the authority to regulate greenhouse gas emissions under the Clean Air Act, corporations cannot be sued so long as they are obeying current regulations. In effect, the ruling in Massachusetts v. EPA has foreclosed this other legal avenue. This is known in legal jargon as “displacement.” Though the court’s decision did leave open the possibility of such public nuisance cases at the state level, it was a major blow to efforts to “sue the bastards,” to quote the early motto of the Environmental Defense Fund.

The same obstacle blocked a lawsuit brought by Kivalina, Alaska, a village on a small barrier island that scientists predict could be underwater within a decade. The village is set to be relocated at an estimated cost of over $100 million—local officials claim $400 million—and, in 2008, Kivalina filed a suit against ExxonMobil and twenty-three other corporations for damages. But in 2012 the case was dismissed, ultimately by the Ninth Circuit Court of Appeals, in part because of the displacement issue.

Some lawyers adamantly believe that as the effects of climate change continue to worsen, more tort cases in this vein will succeed. Others are less optimistic about whether such cases will ever rock ExxonMobil as they did Philip Morris.*

Legislation v. litigation

If litigation was Plan B, how has it panned out? Possibly better than any realistic version of Plan A—that is, new legislation. Opinions differ on whether the cap-and-trade bill that failed to pass early in Obama’s presidency would have been preferable to the executive action he’s taken instead under the Clean Air Act. The bill would actually have removed some of the EPA’s authority to regulate greenhouse gases, and was so full of loopholes that some environmental groups, including the Center for Biological Diversity, opposed it. And the chances of a stronger bill—a carbon tax, for example—getting through today’s Republican-led Congress are effectively nonexistent. (In the current Congress, four bills have been introduced to put a price on carbon; seven have been introduced to undercut the EPA’s ability to regulate greenhouse gases.)

In a sense, efforts to regulate greenhouse gases are arguably still relying on Congress. But they’re relying on the Congress of the 1970s, when environmentalism was an enormously popular bipartisan cause, and when the chambers were not as polarized. With their sweeping language and inclusion of citizen suits, those lawmakers laid the groundwork for a dynamic response to evolving environmental issues.

No doubt this approach has its limits. The laws of the 1970s were not specifically tailored to address climate change, which makes them less than ideal instruments. The Clean Air Act, for example, is much better at regulating proposed power plants than existing ones, according to Michael Gerrard, director of Columbia’s Sabin Center. And even legal victories can force the government to do only so much. As the aftermath of Massachusetts v. EPA shows, the executive branch has a lot of discretion, and its response to court decisions matters supremely. Obama has done far more than Bush, though not as much as some environmentalists wish. If a Republican is elected, a lot of this work could be undone, though not as readily as some environmentalists fear.

In the ongoing interplay between Congress, the executive branch, and the courts, an equally important wild card is, of course, judicial interpretation. As Ruth Bader Ginsburg’s 1990 ruling suggests, the views of judges may change over time, along with scientific evidence and public opinion. In many cases, such as Ginsburg’s own subsequent rulings, these trends have favored climate action. But it is sobering to recall that Massachusetts v. EPA was a 5-4 decision, and to realize that the outcome of future cases may hinge on one question: who replaces Ruth Bader Ginsburg on the Supreme Court.

It’s clear that we can’t just sue our way to climate justice. But in the absence of new legislation, the courts will continue to be a vital forum for challenging the fossil fuel industry’s stranglehold on politics. Litigation is one tool among many that activists can use to sway public opinion and hold those in power to account.

The current teenager-led lawsuit against the Obama administration on constitutional grounds is certainly quixotic. But then, almost nobody expected the Dutch case to succeed either. The youth complaint could be seen as a kind of opening salvo in the larger battle to establish the right to a livable environment. After all, other cases, such as Brown v. Board of Education, Roe v. Wade, and most recently, Obergefell v. Hodges (the marriage equality case) enshrined rights that are not spelled out in the Constitution. The young citizens and their guardians cite the decision in Obergefell: “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Just as the framers never envisioned same-sex marriage, they never imagined the need to avert, in the words of the complaint, the “irreversible destruction” threatened by climate change. “I think we’re taking extreme action because we need extreme change,” nineteen-year-old plaintiff Kelsey Juliana told MSNBC. “But I don’t even think this is that extreme. We’re just advocating for our rights.”

Rebecca Tuhus-Dubrow is a contributing editor at Dissent.