In 2015, a group of children filed a climate change lawsuit against the US government on the grounds that “through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property.” The case, often referred to as the Juliana case, is scheduled for trial in October this year.
Will this strategy work? Litigation involving climate change and environmental regulations has had mixed success over the years, but there are some common trends that could be informative. A paper published in this week combs through hundreds of lawsuits to tease out what kinds of strategies have been tried out, and what’s been successful. The paper found that pro-regulation lawsuits often have a hard time proving injury but still have a decent track record on cases involving renewable energy.
On the case(s)
Sabrina McCormick, a sociologist at George Washington University, is interested in the social dimensions that shape climate change. She and her colleagues created a database of all 838 climate change lawsuits in the US between 1990 and 2016, classifying each case by factors like the kind of plaintiff and the outcome of the case.
Climate change lawsuits aren’t all trying to instigate climate action—some are trying to prevent regulation. So McCormick and her colleagues classified the suits as pro-regulation if “their motivation was to demand more protection of the environment or implementation of more rigorous environmental regulation.” Anti-regulation suits involved plaintiffs who were challenging existing regulations or laws.
The researchers found that suits involving air quality, like those focused on coal-fired power plants, were the most common, and they featured both pro-regulatory plaintiffs like NGOs and anti-regulatory plaintiffs like businesses. Overall, there were more anti-regulatory wins, even though there were more pro-regulatory cases overall. But there was one category where pro-regulatory cases seemed to do better: the small number that involved energy efficiency and renewable energy.
“There’s little in this article that will genuinely surprise US climate-litigation watchers, but it’s useful to see empirical support for the intuitions that most of us in the field already hold,” says Erin Ryan, an environmental law professor who wasn’t involved in the study. Using litigation to combat climate change “accomplishes certain objectives more effectively than others,” she says, and the analysis “makes this point effectively and backs it up with data.”
Cause and harm
The analysis explores how establishing harm and proving causality influence different outcomes. While anti-regulatory cases tended to make the case that regulation harms profits, pro-regulatory cases had a harder time convincing courts of harm or that climate change was causal in that harm. This wasn’t surprising, says Ryan, who added that it was “compelling to see that it is specifically the harmed profits of anti-regulatory interests that help get them through the courtroom door, while ordinary air-breathers have a harder time asserting their interests in court.”
On top of the data analysis, the researchers interviewed people involved a small number of particularly interesting cases to get a better understanding of the strategies and outcomes involved. They found that sometimes, winning or losing a case isn’t as important as raising awareness or mobilizing the public. “The Juliana case is an excellent example of this,” says Ryan. “The plaintiffs there might count their legal effort as a success if it galvanizes the movement or brings millennial voters to polling stations, even if the case is ultimately unsuccessful in court.”
Although the analysis is an interesting look at the landscape, it’s not the last word. Some of the categories had only a handful of cases in them, making it difficult to extrapolate to general trends. And the world is changing fast. “The Trump administration has announced plans to substantially weaken the regulations implementing the Endangered Species Act, so it’s quite possible that the findings of this study will be dated by the time new litigants make strategic decisions,” Ryan points out. “It’s a complicated moment in time.”