Climate Lawsuits Are Finding Success Around the Globe. Will Strategy Work in U.S.?

By Joseph Fawbush, Esq. on January 10, 2022

The political and policy debates surrounding climate change have been going on for decades. But what policy changes have come about have not been enough to reassure activists concerned about human-induced global warming.

The United Nations' Intergovernmental Panel on Climate Change recently warned that Earth's population is in a "code red" due to rising temperatures, rising sea levels, and more extreme weather events. These warnings have come repeatedly in recent years, so much so that surveys show that many younger people are fatalistic about the chances of curbing the effects of climate change.

Despite the political impasse, however, some recent developments have been made in judicial systems throughout the world. This is a summary of recent decisions and a look ahead at what environmental litigation regarding climate change is facing U.S. courts in 2022.

Supreme Court To Decide Regulatory Power To Curb Emissions

One of the most anticipated decisions of the U.S. Supreme Court's 2021-22 term involves federal power to regulate greenhouse gas emissions under the federal Clean Air Act, the main federal law regulating air quality.

The Supreme Court will hear oral arguments in West Virginia v. Environmental Protection Agency in late February, with a decision expected in June. If the Supreme Court narrows the scope of the CAA provision at issue, it could prevent the Biden Administration from issuing tougher regulations on greenhouse gas emissions.

While the case before the Supreme Court is perhaps the most anticipated, that is by no means the only case worth watching.

Suing Oil and Gas Companies for Fossil Fuel Emissions

The City of Baltimore is one of several local governments attempting to hold oil and gas companies liable for carbon dioxide emissions. The U.S. Court of Appeals for the Fourth Circuit is set to decide an interesting procedural question on this case later this year.

At issue is whether Baltimore can sue oil and gas companies in state court. FindLaw has the details of this long-running case in a previous blog post. The short summary is that the oil and gas companies involved are trying to have the case moved (also known as "removed") to federal court, where they feel (for good reason) they are much more likely to win.

While the Fourth Circuit previously rejected the defendants' arguments for removal, the Supreme Court, in May 2021, ruled that the Fourth Circuit failed to properly consider all the factors at issue and sent it back down to the Fourth Circuit. It was, essentially, a win for oil and gas companies. So the Fourth Circuit will decide again whether removal is appropriate. Oral arguments will occur in late January with a decision also expected later this year.

A Claim Under the Public Trust Doctrine

An interesting and novel legal claim is also continuing in federal court in Washington state. This claim involves the "public trust doctrine." This doctrine holds, in essence, that property owned by a state is held in trust for the people of the state.

Originally intended to prevent state governments from giving away land (particularly underwater land) to third parties, a group of environmental activists is using this Supreme Court doctrine to argue that Congress has essentially violated the rights of citizens to essential natural resources. They argue that climate change will deprive them of usable land and other resources like timber and clean drinking water.

They also argue that the government is violating their due process rights under the Fifth Amendment, claiming that government inaction is depriving them of life, liberty, and property.

This is the second amended complaint the group has filed. In 2020, the U.S. Court of Appeals for the Ninth Circuit dismissed the case, holding that the plaintiffs did not have standing to sue. The case is Juliana v. United States.

Success in European Courts

While climate activists have not found success in the U.S., in Europe and elsewhere litigation has resulted in somewhat surprising victories for climate activists. These include:

Uphill Battle in U.S. Courts

Despite success around the world, it is far from clear any of the litigation in U.S. courts will play out similarly. In fact, climate activists face an uphill battle in almost all of the above cases.

Still, it is clearly a new front in the fight over climate change, one that is likely to see continued efforts in the years to come.

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