When it comes to climate change policy, don’t underestimate the power of the courts.
That’s the message from new research that analyzes the growing — but under-recognized — role of the judiciary in the fate of climate change regulations, and the increasing influence of science in climate litigation.
“The new watch-phrase in climate change activism — from both sides — is ‘see you in court,’” said Sabrina McCormick, professor of environmental and occupational health at George Washington University and lead author of the study, which appears in the journal Science. “The judiciary is a critical piece in upholding a just society.”
The number of federal and state climate change lawsuits has been increasing since 1990, and those that invoke climate science have been increasing as well, especially since 2006, the study said. Such cases likely will surge if the Trump Administration continues to unravel climate protections enacted by President Obama.
“Litigation related to climate change is likely to grow in the next few years in response to actions by the administration and Congress to roll back regulations dealing with greenhouse gas emissions and protections against the effects of climate change,” said Robert L. Glicksman, a professor of environmental law at George Washington University, and a study coauthor.
Paradoxically, while climate change lawsuits are increasing, they still remain an “under-appreciated” tool, according to researchers.
“So often, attention is drawn to what the president does or what Congress does, and significantly less attention is paid to what the courts do,” McCormick said. “But the judiciary has become the key branch of government in which climate change currently is being addressed and will be addressed in the coming years.”
Most lawsuits focused on air pollution, often with an eye to coal-fired plants, according to the study. Scientists found that opponents of government regulation prevailed in 58 percent of these cases. However, pro-climate plaintiffs won more than twice as often as their adversaries in cases that involved renewable energy and energy efficiency.
Moreover, the researchers found that the number of cases that mention climate science has been increasing. They noted a 2007 Supreme Court ruling, Massachusetts v. Environmental Protection Agency, in which the high court cited climate science when it ruled that the EPA must regulate carbon dioxide as a pollutant.
Climate science also was pivotal in the 2009 ruling by a U.S. District Court judge who overturned an Interior Department decision to remove the grizzly bear from the endangered species list. The ruling was influenced by studies showing climate change threatens bears’ food sources, the study said. (A more recent attempt to delist the grizzly is the focus of a new legal challenge.)
“Climate science is really becoming key to pro-climate cases,” McCormick said, referring to cases where plaintiffs sue to preserve regulations. “What we are seeing is that the level of science used in all of these cases is increasing.”
She said the current trends in climate litigation are reminiscent of lawsuits directed at the tobacco industry after a staggering amount of scientific evidence established the health hazards of tobacco. During that same time, several decades ago, it was revealed that the tobacco industry was aware of these dangers and kept them from the public.
Similarly, ongoing litigation against ExxonMobil charges the company with failing to disclose the risks of climate change to its investors and the public, McCormick said. The suit faults Exxon for “hiding evidence that their product caused climate change,” she said. “It’s the kind of thing that is quite parallel to what happened with tobacco. Industry fought the science and won for decades, and it was incredibly politicized.”
As the body of climate science grows, she predicts that many cases now considered “nuisance” suits — for example, those in which communities claim that a hurricane or other weather event was made worse by climate change — ultimately may be successful. “These cases generally get thrown out, or the plaintiffs lose,” she said. “But advances in science may change this. It’s something to keep our eye on in the coming years.”
McCormick, who has served as lead author on the Special Assessment of the Nobel Prize-winning Intergovernmental Panel on Climate Change, and her colleagues examined 873 judicial decisions between 1990 and 2016. They found that science was raised more frequently in suits arguing for more protections compared to those that argued against regulations.
Future legal actions are likely to challenge the federal government for failing to account for climate change in decision making. The researchers said that cases to watch include those actions filed by the nonprofit Our Children’s Trust, which argue that U.S. states are responsible for protecting children against the consequences of climate change. The lawsuit underway in Oregon used climate science to overcome major legal hurdles. “Most people would say those cases are a real longshot, but they do reframe how we think about the transgenerational effects of climate change,” McCormick said.
McCormick and her colleagues note that courts in other countries have used novel legal approaches to deal with climate change. In the Netherlands, for example, a district court ordered the government to adopt measures to reduce greenhouse gases based on rulings by the country’s Supreme Court asserting the government is accountable for protecting citizens from foreseeable harm. “Sometimes outlandish legal approaches end up being the most impactful,” McCormick said.
“We have to re-conceptualize the court system as another realm of participatory democracy,” McCormick said. “Trump is in the process of appointing judges who will have long-term effects on climate policies. We pay a lot of attention to elections but not enough to these appointments. This is an important place for citizens to be engaged if we want to protect our health and the future of our families.”