08 July 2018

Climate Change Litigation

'Climate Change and the Individual' by Margaret Rosso Grossman in (2018) 66 The American Journal of Comparative Law comments
 “Climate change, once considered an issue for a distant future, has moved firmly into the present.” Atmospheric and ocean temperatures are rising, “[p]recipitation patterns are changing, sea level is rising, the oceans are becoming more acidic, and the frequency and intensity of some extreme weather events are increasing.” The 2017 Climate Science Special Report describes the current state of scientific knowledge about U.S. and global climate change. The report concludes that “it is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation.”
Global data show that 2016 was the warmest year on record and the third consecutive year for record global average surface temperatures. In the continental United States, 2016 was the second warmest year on record, after 2012, with higher than average precipitation and fifteen climate-related disasters including drought, wildfire, floods, and severe storms, which caused losses of more than $1 billion.
The emission of greenhouses gases (GHGs), which move about in the atmosphere, is a major cause of global climate change. GHGs absorb terrestrial radiation that leaves the Earth’s surface. Although GHGs “create the natural heat-trapping properties of the atmosphere” and are “necessary to life as we know it,” high concentrations of GHGs cause an increase in the Earth’s absorption of energy and the resulting increase in temperature referred to as global warming.
Recent research identifies deadly effects of climate change, “one of the biggest global threats to human health of the 21st century.” If global GHG emissions are not reduced, heat waves will affect 74% of the world’s population by 2100. Even with drastic GHG reductions, almost half of humans will face deadly heat. In Europe, increasing temperatures will result in weather disasters, especially heat waves and coastal flooding, and a sharp increase in climate-related deaths by 2100. By 2050, climate change may affect nutrition in developing countries as rising temperatures reduce availability of plant proteins.
Although a number of U.S. statutes govern human activities related to climate change, no comprehensive climate change legislation exists. Federal programs (including the Obama administration’s Climate Action Plan13), as well as regional, state, and local initiatives, promised to mitigate and adapt to the effects of climate change. Recent developments, however, have diluted federal efforts. For example, in March 2017, President Trump revoked significant Obama-administration climate change policies, including the Climate Action Plan and related strategies. This revocation and others that followed are likely to result in increased emissions and a failure to meet climate targets (e.g., energy efficiency, methane emissions).
Significantly, in June 2017, the United States announced its withdrawal from the Paris Agreement, a decision that triggered international condemnation, as well as criticism from state and local governments and large corporations in the United States. In August 2017, the United States notified the United Nations of its intent to withdraw from the Paris Agreement as soon as the United States is eligible, unless it “identifies suitable terms for reengagement.” The U.S. withdrawal was characterized as a “severe backwards move and an abrogation of its responsibility as the world’s second largest emitter . . . when more, not less, commitment is needed from all governments to avert the worst impacts of climate change.” Despite this withdrawal, however, the United States could meet its Paris goals through the efforts of cities, states, and businesses. The global crisis of climate change has affected the practice of law. Indeed, in recent years, climate change has engendered “a rapidly building wave of litigation” in the United States. Although the judiciary is “a latecomer to the crisis that has worsened in the hands of the legislative and executive branches,” litigation can play a role in forcing government regulatory action and perhaps in providing remedies for harm from GHG emissions. As commentators observed, “[t]he president might root out climate policy from executive branch decision-making, but he cannot unilaterally remove the issue from judicial consideration.”
This Report, guided by a questionnaire prepared for the Twentieth General Congress of the International Academy of Comparative Law, addresses the topic of climate change lawsuits and the individual. The questionnaire focuses on lawsuits filed by individual plaintiffs against public and private actors to achieve mitigation of climate change or adaptation to its effects. It does not focus on legal persons, such as corporations and other legal entities. Of the hundreds of climate change cases filed in the United States, only a small number involve individual plaintiffs. Other cases involve environmental organizations that sue on behalf of their members, demanding mitigation or adaptation and sometimes damages for injury. To provide background, this Report first reviews possible causes of action to remedy climate change. It raises a number of difficult issues faced by plaintiffs in climate change litigation. The Report then reviews a number of cases brought by individual plaintiffs and environmental organizations against public and private actors.