From movies like “Erin Brockovich” and “A Civil Action” to more recent fare like “Dark Waters,” Americans are used to seeing lawyers vindicate the importance of environmental protection in court. Perhaps it is unsurprising, then, that environmentalists, frustrated with what they see as slow progress from the political branches of government on mitigating the effects of climate change, are increasingly seeking to achieve their objectives through litigation.
Between 1986 and 2017, 884 climate change lawsuits were brought in over 24 countries. By 2020, this number had nearly doubled to 1,550. While global in scope, the vast majority of climate-related lawsuits were brought in the United States. Some of the cases, far from being brought by scrappy underdogs, have been backed by philanthropists and non-governmental organizations and were based on a variety of legal theories. Some cases are grounded on deception, claiming that fossil fuel companies misled the public about the effects of greenhouse gas emission. Other cases try to adapt traditional tort claims like trespass or nuisance to the climate context, alleging that human-caused climate change interferes with the ability of the plaintiffs to use their property. And some rely on creative or obscure legal theories such as the public trust doctrine — arguing that the atmosphere is publicly owned and must be preserved by government action. Real life, however, is not the movies, and so far the record of actual climate litigation bears little resemblance to the big screen fictionalized version. While climate activists just scored a substantial legislative victory with the passage of the Inflation Reduction Act, to date, no climate lawsuit has succeeded or even gone to trial. Many of these cases are still pending and remain in the early stages, of course. But some of the bigger ones have already failed. Juliana v. United States, one of the earlier and biggest climate lawsuits popularly known as the “Children’s Climate Lawsuit,” received substantial media attention when it was filed in federal court in Oregon, but was ultimately dismissed by the Ninth Circuit Court of Appeals in January of 2020. The failure of climate litigation is the result of multiple factors. Often the lawsuits are unable to overcome the procedural hurdles that the law typically imposes for civil actions. In the words of science historian Leah Aronowsky, climate cases “while climate scientists now have persuasive methods for holding industry to account, lawyers have come up against the limits of US tort law.” Consider the statute of limitations. Most jurisdictions have a statute of limitations, which requires claims to be brought within a set number of years of when the alleged wrongful actions of the defendants occurred. A statute of limitations is necessary to provide stability in the law and prevent issues from being litigated long after memories and records of the underlying events have grown stale. This can be a real challenge for plaintiffs seeking to bring actions against energy companies based on the damaging effects of human caused climate change. For example, in County of Maui v. Sunoco, filed in Hawaii state court in October of 2020, plaintiff Maui County alleges that various fossil fuel companies made deceptive statements about the effects of greenhouse gas emissions on the climate, yet all of the purportedly deceptive statements were made prior to the year 2000, 21 years before the lawsuit was filed. Claims based on theories of trespass or nuisance may also be barred based on the statute of limitations. Plaintiffs in climate litigation seek to hold defendants liable for emissions made decades in the past. And while the statute of limitations may be tolled where a plaintiff is ignorant of the harmful actions of the defendant, that cannot apply in the case of climate change, the likely effects of which have been well known for many years. Hawaii law recognizes that the statute of limitations is justified in part based on “the presumption that people do not voluntarily delay in prosecuting genuine claims, and [that] it is unfair to force a person to defend an action where the passage of time may result in death of witnesses, destruction of documents, or fading memories.” Thus, even when the alleged harm is ongoing if the plaintiffs knew or should have known about the existence of the wrongful action causing the harm without seeking redress during the statutory period. Some activists have sought to avoid these problems by exempting climate lawsuits from the normal requirements for litigation. The International Bar Association has suggested creating a special, longer statute of limitations period for climate cases. This seems more an exercise in wishful thinking than a serious legislative proposal and overlooks a more fundamental reason why litigation is unlikely to be a good way of dealing with climate change. It is possible to view the appeal of litigation to address environmental problems as a theoretical matter, but practically speaking, litigation is inadvisable, and climate policy should be made by the political branches of government. Traditional legal disputes involved a small, discrete number of parties. More recent times have seen the rise of complex litigation and class action lawsuits, but it remains the case that the rules of civil litigation are based around a manageable number of parties with a clear and discrete dispute or set of disputes. By contrast, climate change is a global issue involving nearly every person and entity on the planet. Nearly everyone emits greenhouse gases, albeit in radically different amounts, and nearly everyone will be affected by the consequences of climate change, albeit to different degrees.  The battle over climate change represents a kind of war of all against all. Apportioning the blame and harm from climate change cannot be done comprehensively in a single case and attempting to do this piecemeal fashion is of uncertain value. The sheer number of people involved also precludes the sort of compromises that often resolve litigation. While the two sides in a lawsuit may stake out far reaching legal positions in their cases, they always have the ability to reach a settlement agreement that can balance the interests of both parties. That sort of legal settlement is not possible when the affected parties include everyone in society. The closet analogue to this balancing of interest on a societal scale is that which comes through the political process, not in court. Whatever one thinks of the recently passed Inflation Reduction Act’s climate provisions, it at least represents an attempt to work out this sort of compromise, and unlike the climate lawsuits so far, it has been enacted into law. If climate advocates want their story to have a happy ending, they should focus their energies on efforts that have a long-term chance of success. That means some form of legislative compromise that recognizes the different interests of all stakeholders. While this may lack the high drama of a courtroom battle, it is less likely to result in the policy equivalent of a box office flop.

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