Climate change law - Application and Impact of Climate Litigation

Climate Litigation: Legal Strategies and Landmark Cases Introduction Climate litigation represents a growing strategy for compelling governments and corporations to address climate change through the courts. Rather than relying solely on legislative action, environmental advocates have filed thousands of lawsuits worldwide using existing environmental laws, constitutional provisions, and international agreements. These cases serve a dual purpose: they can mandate specific climate actions and they can clarify legal obligations regarding greenhouse gas emissions and environmental protection. Understanding the major legal instruments, landmark cases, and actors involved is essential to understanding how climate law is developing globally. Major Legal Instruments in U.S. Climate Litigation The United States has seen the highest number of climate-related lawsuits globally, with over 1,000 pending cases as of 2020. Rather than relying on a single "climate law," U.S. plaintiffs strategically use several existing federal statutes to address climate change. Here are the three most important: National Environmental Policy Act (NEPA) The National Environmental Policy Act requires federal agencies to assess the environmental impacts of their major actions before proceeding. This assessment takes two forms: an environmental assessment (EA) for less significant actions, or a detailed environmental impact statement (EIS) for more substantial federal undertakings. NEPA is valuable in climate litigation because it forces agencies to consider the climate consequences of their decisions—whether approving a pipeline, issuing permits, or funding infrastructure projects. By requiring these agencies to transparently evaluate climate impacts, plaintiffs can argue that inadequate analysis violates procedural requirements, even if NEPA itself doesn't directly limit emissions. Clean Air Act The Clean Air Act was originally designed to regulate air pollutants like sulfur dioxide and nitrogen oxides that cause smog and respiratory illness. However, a critical 2007 Supreme Court ruling expanded its scope: the Court determined that the Environmental Protection Agency (EPA) must regulate greenhouse gases under the Clean Air Act, treating them as "air pollutants" subject to the statute's requirements. This ruling was transformative for climate litigation because it established that the EPA has both the authority and the responsibility to regulate carbon dioxide and other greenhouse gases. Plaintiffs can thus sue the EPA for failing to adequately regulate these emissions or for regulations that are insufficiently stringent. Endangered Species Act The Endangered Species Act has two key provisions relevant to climate cases. Section 7 mandates that federal agencies must not jeopardize listed endangered or threatened species through their actions or funding decisions. Section 9 prohibits any party—private or governmental—from "taking" an endangered species, where "taking" includes harming habitat. Climate change threatens numerous species with extinction, so plaintiffs use these provisions to argue that federal agencies must consider climate impacts when approving projects. For example, an agency approving a fossil fuel project must evaluate whether that project, by contributing to climate change, will jeopardize polar bears or sea turtles. Landmark U.S. Climate Cases Juliana v. United States (2015–2020) Juliana v. United States was one of the most closely watched climate cases in American history, though it ultimately did not succeed on the merits. The case was filed by a group of youth plaintiffs who argued that the federal government's failure to address climate change violated their constitutional rights and harmed their futures. The plaintiffs' core argument was innovative: they contended that the right to a stable climate system is a fundamental constitutional right, and that the government's continued permitting of fossil fuel extraction effectively infringes this right. Judge Ann Aiken, in an early ruling, agreed with a key premise—finding that "a climate system capable of sustaining human life" is indeed a fundamental right under the U.S. Constitution. However, despite this sympathetic framing, the case was ultimately dismissed in 2020 on separation-of-powers grounds. The court concluded that while the constitutional harm was real, the remedy—requiring the executive branch to dramatically curtail fossil fuel activities—crossed the line into executive decision-making that the judiciary cannot compel. This ruling illustrates a critical challenge in climate litigation: even when courts acknowledge the severity of climate harm, they may be reluctant to order specific policy changes that they view as the legislature's or executive's proper domain. Held v. Montana (2023) In contrast to Juliana's constitutional approach, Held v. Montana represents the first climate case to go to trial and produce a judgment based on state constitutional law. Filed by youth plaintiffs in Montana, the case asserted a right to a clean and healthful environment under the Montana state constitution. Rather than arguing for a federal right, the plaintiffs grounded their case in language that already existed in Montana's constitution. This narrower, state-level approach proved more successful strategically. The court ruled that the state must consider climate impacts when making decisions about fossil fuel development, establishing a precedent for how state constitutions can mandate climate action. Held v. Montana demonstrates an important lesson: when federal courts prove reluctant to intervene, plaintiffs can turn to state courts and state constitutional provisions, which may provide stronger textual support for environmental protection. The Role of NGOs, Youth Movements, and Collective Action Climate litigation is not primarily driven by individual plaintiffs suing alone. Instead, it relies on coordinated efforts by multiple actors: Funding and Collaboration Climate cases are expensive and often take years to litigate. Environmental organizations, advocacy groups, and citizen coalitions pool resources to fund these lengthy battles. This collaborative funding model has enabled climate litigation to proceed at a scale that individual plaintiffs could never sustain. Major environmental NGOs often coordinate strategy across multiple cases, sharing legal expertise and resources. Youth Movements as Catalysts Youth climate movements, particularly Fridays for Future (inspired by Greta Thunberg), have been central to high-profile climate lawsuits. Young people have served as plaintiffs in cases like Juliana v. United States and the Urgenda case (discussed below), making a compelling moral and legal argument: they will live with the consequences of climate inaction longer than current policymakers. International Coordination Climate litigation is increasingly coordinated across borders. After a landmark Dutch court ruling in 2015 (discussed below), environmental groups filed similar lawsuits in Brazil, Belgium, India, New Zealand, Norway, South Africa, Switzerland, and the United States. Some cases involve multilateral suits—for instance, ten families from multiple continents sued the European Union as a single coordinated action. This international coordination amplifies pressure on governments and demonstrates that climate change transcends borders, as does the legal strategy to address it. Influence on Policy When climate litigation succeeds, it often compels governments to strengthen environmental legislation, set binding emission-reduction targets, and develop climate adaptation plans. A single court ruling can effectively require what legislative bodies have delayed or refused to do. Important International Examples The Urgenda Case (Netherlands) The Urgenda case, decided by the Dutch Supreme Court in 2015, became a template for climate litigation globally. The Dutch court ruled that the Netherlands had a legal obligation to reduce greenhouse gas emissions rapidly, based on both human rights law and tort principles. The court emphasized that the government has a duty of care to protect citizens from foreseeable harm—in this case, the harms of climate change. What made this decision remarkable was not just the outcome, but its reasoning: the court grounded climate obligations in pre-existing legal principles (human rights and duty of care) rather than requiring new legislation. This approach proved exportable. Environmental groups saw that if human rights law could support climate action in the Netherlands, it might work elsewhere too. Post-Urgenda Wave Following the Dutch ruling, similar lawsuits proliferated across multiple countries, including Belgium, Brazil, and Switzerland. The Urgenda logic—that existing legal frameworks already contain protections against climate harm—became a primary strategy for international climate litigation. <extrainfo> The UN Climate Resolution (2023) In 2023, the United Nations adopted a resolution urging the International Court of Justice (the UN's highest court) to clarify countries' international legal obligations regarding climate change. While this resolution does not itself impose obligations, it signals growing momentum to frame climate action as a legal duty under international law, potentially enabling cases at the global level. </extrainfo> A Critical Challenge: Backlash Litigation While successful climate litigation can drive policy change, it can also trigger unexpected legal countersuits. This phenomenon, called backlash litigation, occurs when high-emitting companies or fossil fuel interests challenge governmental climate actions through the courts. A notable example is RWE v. The Netherlands. RWE, a major German energy company, sued the Dutch government under the Energy Charter Treaty after the Netherlands accelerated its phase-out of coal power. RWE claimed the rapid transition gave the company insufficient time to adapt and alleged that the Dutch government's action breached international investment agreements. This type of case reveals a fundamental tension: successful climate litigation may empower courts to order climate action, but those same legal frameworks may also enable corporations to sue governments for implementing that action. <extrainfo> The threat of backlash litigation raises questions about international investment law and whether treaties designed to protect corporate investments can constrain climate action. Some scholars argue that these agreements should be reformed to exclude climate-motivated regulations, while others contend that climate action must override traditional investment protections. </extrainfo> Key Takeaways Climate litigation operates through multiple legal strategies: Statutory approaches use existing laws (NEPA, Clean Air Act, Endangered Species Act) to compel climate consideration in agency decisions Constitutional approaches assert fundamental rights to a clean environment or stable climate system International and human rights approaches frame climate action as a legal obligation grounded in duty of care and human rights protections Collective action by NGOs and youth movements amplifies individual cases into systemic change Backlash litigation demonstrates that legal victories can trigger countersuit strategies by affected industries Understanding these strategies, their successes, and their limitations is essential for comprehending how law shapes climate policy.