Climate litigation & legislation: A necessary match

Gabriel Bongiorno is a Fellow with Our Climate and a sophomore at Binghamton University.


 

Our Climate's blog provides a space for ongoing conversation about climate change, politics, and carbon pricing in our community. We welcome perspectives from student leaders, staff, and board in the spirit for exploring ideas.

Human-caused climate change threatens to disrupt our way of life. The effects of rising temperatures due to excessive greenhouse gas (GHG) emissions have already taken effect:  more frequent and powerful storms, melting polar ice caps, and larger wildfires have already caused major economic damages and losses of human life on a scale greater than ever before[1]. We know the primary culprits of this disastrous phenomenon—the fossil fuel industry—so what is stopping us from holding them accountable? Why can’t injured parties simply sue fossil fuel companies for the damages dealt by the greenhouse gasses they emit?

One intractable problem plaintiffs confront in climate litigation suits is the difficulty of proving a cause-effect relationship between an individual polluter and a specific environmental impact. Climate change is a global problem. The effects of greenhouse gas emissions from a power plant in New Jersey may be felt 3,000 miles away in California.  However, pinpointing the New Jersey plant as the responsible party would be nearly impossible, in large part because the effects of climate change are caused by the cumulative contributions of countless greenhouse gas emitters. So, the power plant in New Jersey may be just as responsible for damages caused by rising global temperatures as a cattle farm in Wisconsin, or a trash incinerator in Michigan. The cumulative nature of the phenomenon renders it difficult to identify a defendant to sue for damages.

Despite this difficulty, many plaintiffs have nevertheless attempted to sue GHG emitters for the damage they have caused. In the case of Native Village of Kivalina v. ExxonMobil Corp. (2009), the Inupiat Eskimos native to Kivalina, Alaska, sued twenty-four oil, energy, and utility companies for damages resulting from the melting of Arctic sea ice that had previously protected their coast from storms. They claimed that the twenty-four companies, chiefly ExxonMobil Corp, were responsible for this damage, because of their role in rising global temperatures brought on by greenhouse gas emissions, and thereby owed them between $95-$400 million to fund the relocation of the residents. The case was dismissed on the grounds that the plaintiffs “could not demonstrate that the companies had caused them injury” [2].

In a more recent case, Lliuya v. RWE AG (2015), Saul Luciano Lliuya, a Peruvian farmer, attempted to sue the German electric company, RWE, for damages caused by the melting of mountain glaciers near his town, which he claimed was due in some measure to warming caused by greenhouse gasses released by the German company [3]. The court decided to dismiss Lliuya’s suit on the grounds that he could not prove with certainty a “linear causal chain” between the greenhouse gasses emitted specifically by RWE and the melting of the glaciers in his town.    

The most glaring flaw with using litigation as a tool for fighting climate change is the fact that litigation is usually a means of compensating for past damages, rather than a tool for the preemption of future injuries. Even though the most significant and Earth-altering consequences of climate change will be felt by future generations—and climate scientists agree virtually unanimously that this damage will take place— plaintiffs cannot sue the fossil fuel industry over damages that they have yet to incur.

Rather than suing the fossil fuel industry, some groups have attempted to overcome this limitation of litigation by suing the Environmental Protection Agency (EPA) in order to force the agency to enact some regulatory measure to mitigate the impacts of climate change. In the 2007 case, Massachusetts v. EPA, the Supreme Court ruled in a five to four decision that the EPA must regulate carbon dioxide emissions under the Clean Air Act [4]. The regulatory power of this decision was later gutted in a 2014 Supreme Court decision that ruled that stationary sources could not be forced to obtain emission permits based solely on their greenhouse gas emissions. The majority opinion, written by Justice Scalia, stated that requiring stationary sources to obtain permits for greenhouse gas emissions would place “excessive demands on limited governmental resources” and “bring about an enormous and transformative expansion in the EPA’s regulatory authority without clear congressional authorization” [5].

This decision highlights one of the biggest problems with using litigation to enact climate change policy. America has a history of aversion to regulatory action. Regulatory efforts are usually countered with concerns that regulation will limit job growth, stifle innovation, and dampen the competitiveness of American industry [6].  Without arguing the validity of this perspective, it has, without question, had an impact on our government’s ability to enact meaningful climate policy.  The “costly regulations” sentiment can be seen in Justice Scalia’s argument against expanding regulatory power in the aforementioned case. Similarly, one climate litigator laments that the industry often prevails in climate cases by demonstrating the negative impact that regulation will have on profits. On the other hand, plaintiffs must rely on “novel legal theories” such as public nuisance claims, in addition to substantive scientific evidence. The data bears out the litigator’s experience: out of 248 recent cases in which climate change was mentioned, 58% of the outcomes favored the anti-regulatory position [7].

I am not arguing for an end to climate change lawsuits. Whether successful or not, climate change litigation puts important pressure on our courts to acknowledge the issues, and it sends a message to our lawmakers that we are willing to fight for the future of our planet. As a means of enacting effective climate change policy, however, litigation falls short. This is why we need a different solution: a price on greenhouse gas emissions, often called a carbon tax. A well-designed carbon tax could overcome the weaknesses faced by climate litigation. For example, in New York State, legislators have recently introduced the Climate and Community Investment Act (CCIA). The CCIA would hold greenhouse gas emitters accountable for the damage they are doing to our planet through a tax of $35/ton of greenhouse gasses emitted. As a market-based mitigation tool, the CCIA would incentivize industry to lower their emissions by putting a price on carbon, while at the same time reinvesting revenue from the tax back into the communities impacted by climate change. Revenue from the tax would be split in three ways: 30% would go towards investment in public transportation projects across the state; 40% would go towards transitioning New York’s energy infrastructure to renewable sources, with about a quarter of that dedicated to retraining fossil-fuel workers for jobs in new renewable energy projects; and the remaining 30% going back into the pockets of lower and middle income New Yorkers, to ensure that the cost of the carbon tax is not born by the individuals for whom it is meant to benefit [8].

Whether through litigation, advocacy, or any other methods, it is important for young people to get involved with the issue of climate change. We have inherited a planet damaged by the negligence of past generations; it is our decision whether to take action and fix it or allow it to continue on its current course of degradation. If we make the choice to do nothing, we are making the choice to pass on to our children and grandchildren a world unrecognizable to us today. Instead, we should focus our attention on effective, bipartisan solutions to climate change, like the CCIA, so we can hold accountable the industries that are damaging our planet.

   

References:

  1. Wuebbles, D.J., D.W. Fahey, K.A. Hibbard, B. DeAngelo, S. Doherty, K. Hayhoe, R. Horton, J.P. Kossin, P.C. Taylor, A.M. Waple, and C.P. Weaver, 2017: Executive summary. In: Climate Science Special Report: Fourth National Climate Assessment, Volume I. U.S. Global Change Research Program, Washington, DC, USA, pp. 12-34, doi: 10.7930/J0DJ5CTG.
  2. Native Village of Kivalina v. ExxonMobil Corp, 2009 N.D. Cal.  
  3. Lliuya v. RWE AG, 2016 District Court Essen.
  4. Massachusetts v. EPA, 549 U.S. 497 (2007)
  5. Utility Air Regulatory Group v. EPA, U.S.
  6. Gouldson, Andy, Angela Carpenter, and Stavros Afionis. "An International Comparison Of The Outcomes Of Environmental Regulation". Environmental Research Letters 9, no. 7 (2014): 074019. doi:10.1088/1748-9326/9/7/074019.
  7. McCormick, Sabrina, Robert L. Glicksman, Samuel J. Simmens, LeRoy Paddock, Daniel Kim, and Brittany Whited. "Strategies In And Outcomes Of Climate Change Litigation In The United States". Nature Climate Change 8, no. 9 (2018): 829-833. doi:10.1038/s41558-018-0240-8.
  8. "Policy". Our Climate, 2019. https://www.ourclimate.us/policy.




















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