Climate Litigation

You have probably already read our Constitutional Law section (if you haven’t yet, click here to do a quick review) and have familiarized yourself with some of the countries around the world that award some degree of constitutional protection to a healthy environment. This section will look at what other countries (often those without this type of constitutional protection) are doing to get their government to take the issue of climate change seriously.
To do so, let’s start by taking a look at some of the high-profile climate litigation going on around the world 

 

    • Urgenda v State of the Netherlands – This case was brought on behalf of 886 Dutch citizens and argued that the state has a legal duty to reduce their climate emissions and prevent dangerous climate change.[1] The first court decision found that the Dutch government had a duty to cut its greenhouse gas emissions by 25% by the end of 2020 (compared to 1990 levels). This was the first case of its kind and despite numerous appeals by the Dutch government, on December 20, 2019, the Supreme Court of the Netherlands upheld the first court’s decision finding that the state’s duty to reduce greenhouse gas emissions was valid.[2] This court decision was considered a major victory and it will be very interesting to see how the government of the Netherlands proceeds.
    • Environnement Jeunesse v Canada – In November 2018, a group of young people (below the age of 35) in Quebec filed a motion to authorize a class action lawsuit against the Government of Canada.[1] This group proposed the use of both the federal Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms to force the government to act more quickly on the issue of climate change. They argue that not only is the government not on track to meet its Paris Agreement commitments but that these commitments are not enough to prevent catastrophic climate impacts. Recently, the Quebec Superior Court heard the initial application and while the Court found that the claims brought by Environnement Jeunesse were justiciable (which means that the Court has jurisdiction to hear them) the class action format was not the right to bring this case. Instead, the Court told them to come back with the same issues and a single plaintiff. Although this means that the case will take more time, it is an important step towards getting heard by the Canadian court system. In the meantime, Environnement Jeunesse plans to appeal this decision.[2]
    • Juliana et al v US – In this case, a group of American youth filed a 2015 constitutional climate lawsuit in the Ninth Circuit Court of Appeals in Oregon. Their argument was that the government had violated their constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. Originally, some American fossil fuel companies were named as co-defendants but they were later dropped from the lawsuit. Throughout the legal process, the government has continually attempted to prevent the lawsuit from going ahead, asking the Court numerous times to strike the case. However, despite these efforts, on July 30, 2018, the U.S. Supreme Court ruled that the trial was to go ahead, setting the trial start date for October 29, 2018.[3] The trial did not end up in court that fall as it continued to face more government challenges but has continued to succeed throughout the procedural delays and is still alive.[4] The end goal of this lawsuit is to encourage, or if need be force, the government to impose stricter emissions targets for the protection of future generations. Unfortunately, on January 17, 2020, the Circuit Court of Oregon found that the plaintiffs did not have standing to proceed with their case in an Article III court, despite their being substantial evidence that the government’s inaction was contributing to increased dangerous climate change.[5] The plaintiffs have since stated that they plan to appeal the decision.[6]
    • In California, five separate local governments have filed lawsuits against large fossil fuel companies. Each of these lawsuits is asking for damages to help with the costs that have been borne by the local governments in their attempts to combat rising sea levels caused by climate change. These suits argue that these companies are partially responsible for climate change and should, therefore, be partially responsible for the costs of climate change mitigation. Although some of them have since been dismissed by the Courts, you can read more about them by searching the following names: People of the State of California v BP et al., San Francisco Superior Court Case No. CGC 17-561370, and People of the State of California v BP et al., Alameda County Superior Court Case No. RG17875889.[7]
    • In July 2018, a US District Court judge dismissed a case brought by New York City. This was an attempt by the city to sue a group of oil companies including Exxon, Chevron, BP, Shell, and ConocoPhillips for damages to compensate for the cost of upgrading coastal infrastructure and the sewer system to protect from rising sea levels and other effects of climate change. New York City argued that these companies misled the public by downplaying the effects of climate change which company scientists had actually been studying for decades.[8] Notably, the judge’s dismissal effectively ended the complaint from moving forward.[9]

Although climate change litigation is becoming more common, these examples do serve to illustrate how difficult it will be to succeed.

Do you know of any other lawsuits or court challenges around the world that are connected to climate change?

The complications inherent to climate change litigation occur in part due to the length of time between the extraction of oil and gas from the ground, performed by any given fossil fuel company, and the actual use of these fuels, which results in GHG emissions. This gap makes it hard to attribute any particular emissions to any particular fossil fuel company. The closest comparison and the area of law that is most often referred to when devising a strategy for climate change litigation, is tobacco litigation.[10]

Before tobacco litigation started to succeed, the arguments against it were similar: How can we closely connect the sale of tobacco to smoking and eventual negative health results for any individual person? How can we prove that it was this company’s cigarettes that led to the damages?

Throughout the numerous attempts at tobacco litigation, plaintiffs eventually argued that tobacco companies knowingly misled and downplayed the negative health effects associated with smoking, thereby resulting in increased rates of cancer, heart disease, and other health problems. These cases were ground-breaking and have paved the way for future litigation, including climate change litigation. Yet, we need to recognize that it is still significantly more difficult to connect a particular company’s fossil fuel extraction to any specific effect of climate change, in large part because the oil taken out of the ground is not as clearly branded as cigarette packages and cannot be as easily traced to individual users.

An interesting development for future climate change litigation are new studies (here and here) which have connected some of the effects of climate change to specific energy companies. These studies use models to determine which fossil fuel companies are responsible for the majority of climate change effects and divide the effects up by percentage. For example, one report found that only about 90 companies are responsible for nearly two-thirds of historical greenhouse gas emissions. This study, and others like it, will be helpful in determining the outcome of climate change lawsuits because they can help determine what damages each of these individual companies would be responsible for and could help to allocate liability according to their degrees of responsibility.[11]

<< Climate Refugees

Climate Case Studies >>

[1] Urgenda, “Latest Developments” (9 October 2018) online: https://www.urgenda.nl/en/themas/climate-case/; Urgenda, Press Release, “State must achieve higher reduction in greenhouse gas emissions in short term” (9 October 2018) de Rechtspraak online: https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Den-Haag/Nieuws/Paginas/State-must-achieve-higher-reduction-in-greenhouse-gas-emissions-in-short-term.aspx.

[2] THE STATE OF THE NETHERLANDS (MINISTRY OF ECONOMIC AFFAIRS AND CLIMATE POLICY) v STICHTING URGENDA, 19/00135 (Engels) (20 December 2019) online: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007.

[3] Ingrid Peritz, “Quebec group sues federal government over climate change” (27 November 2018) The Globe and Mail online: https://www.theglobeandmail.com/canada/article-quebec-group-sues-federal-government-over-climate-change/.

[2] Environnement Jeunesse, “ENvironnement JEUnesses vs Canada” online: https://enjeu.qc.ca/justice-eng/.

[3] Our Children’s Trust, “Juliana v. U.S. – Climate Lawsuit” online: https://www.ourchildrenstrust.org/us/federal-lawsuit/.

[4] Our Children’s Trust, “Juliana v. U.S. – Climate Lawsuit”.

[5] Juliana v United States, 9th District Court of Oregon (17 January 2020) online: http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf.

[6] Our Children’s Trust, Press Release, “Decision of Divided Ninth Circuit Court of Appeals Finds Primarily for Juliana Plaintiffs, but Holds Federal Judiciary Can Do Nothing to Stop the U.S. Government in Causing Climate Change and Harming Children” (17 January 2020) online: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5e22508873d1bc4c30fad90d/1579307146820/Juliana+Press+Release+1-17-20.pdf.

[7] Gary McWilliams, “California cities sue big oil firms over climate change” (20 September 2017) Reuters online: https://www.reuters.com/article/legal-us-usa-oil-climatesuits/california-cities-sue-big-oil-firms-over-climate-change-idUSKCN1BV2QM.

[8] Nicholas Kusnetz, “New York City Sues Oil Companies Over Climate Change, Says It Plans to Divest” (11 January 2018) Inside Climate News online: https://insideclimatenews.org/news/10012018/new-york-city-divest-sued-big-oil-climate-change-costs-exxon-chevron-bp-shell-mayor-deblasio.

[9] Tom DiChristopher, “Judge throws out New York City’s climate change lawsuit against 5 major oil companies” (19 July 2018) CNBC News online: https://www.cnbc.com/2018/07/19/judge-tosses-nycs-climate-change-lawsuit-against-5-big-oil-companies.html.

[10] Martin Olszynski, Sharon Mascher & Meinhard Dolle, “From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability” (2017) Georgetown Envtl L Rev 30:1.

[11] B Ekwurzel, The rise in global atmosphere CO2, surface temperature, and sea level from emissions traced to major carbon producers (October 2017) 144:4 Climatic Change 579-590; Nicholas Kusnetz, “How 90 Big Companies Helped Fuel Climate Change: Study Breaks it Down” (11 September 2017) Inside Climate News online: https://insideclimatenews.org/news/09112017/climate-change-sea-level-rise-fossil-fuel-exxon-chevron-bp-study. 

 

 

 

Climate Change & the Law

Lesson Plan: Fundamentals of Environmental Law
Lesson Plan: Canadian Charter of Rights and Freedoms
Lesson Plan: Tragedy of the Commons
Lesson Plan: Climate Litigation

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