Climate in the Courts

Will the new National Climate Assessment help plaintiffs suing the federal government?

We have a bit of internal conflict within the federal government these days, to put it mildly. On the one hand, there’s our climate-denying president, not to mention a solidly red Senate that’s not exactly jumping at the chance to take action on climate change. On the other, we have a now blue House of Representatives, and the 13 federal agencies that in late November issued the country’s Fourth National Climate Assessment, a grim report on how climate change is already impacting the daily lives of Americans. And then we have the courts, which have become battlefields for many a climate fight these days, as youth sue the federal government, cities sue oil companies, and nonprofits sue, well, both, in an effort to move the bar forward on climate action.

photo of strike outside Ninth Circuit Court of Appeals
People rallied outside the Ninth Circuit Court of Appeals courthouse in San Francisco in October to show support for the 21 youth suing the government in Juliana v. United States. Photo by Peg Hunter.

In one important way at least, the recent climate assessment could give a valuable boost to the many climate action-oriented plaintiffs making their cases in US courts. Experts say the new report is hard for courts to ignore, and lends credence to the argument that climate change is not only a major threat to future generations, but a here-and-now type of threat that’s already harming the economy, public health, and general welfare. And though there is no shortage of reports detailing the many ways that climate change will alter life as we know it — this fall season alone brought an IPCC report saying we have just 12 years to stem the worst impacts of climate change, a United Nations Environment Program report detailing the climate emissions gap, and the Lancet countdown on health and climate — the National Climate Assessment came from the US federal government itself, a fact that would seem to lend it additional weight in US courts.

 

“I think there is something especially powerful when the government is acknowledging all of these harms, and at the same time … rolling back its own climate regulations,” says Ann Carlson, an environmental law professor at the University of California, Los Angeles School of Law who has written on the subject, adding that it makes the President’s climate denial less credible.

“Generally speaking, courts are not very fond of a party trying to disclaim their own statements,” adds Sumona Majumdar, general counsel for Earth Island Institute, which publishes Earth Island Journal. “That applies to the federal government too … I think precisely because these are the words of the federal government, the federal government is going to have a hard time saying that this report doesn’t carry weight and that it isn’t important. And they are going to have a hard time saying it shouldn’t be admitted as evidence.”

In practice, there are a few different ways that the federal government’s lengthy and compelling climate report could prove useful to climate activists in front of judges and juries. One major way is when it comes to what is known as “standing,” a hurdle that all plaintiffs must pass in order to have their day in court. The requirements for standing are pretty straightforward — plaintiffs must demonstrate that they have been, or will imminently be, injured; that the injury is caused by the defendant; and that the court can somehow make things right, or at least make them less wrong.

For environmental plaintiffs, injury can sometimes be tricky to prove, particularly with respect to climate change, which until recently was viewed more as a looming threat than an existing or even imminent one. That’s where the climate assessment comes in. The 800+ page report details the ways in which climate change is already impacting everything from agriculture, to transportation, to forests, in every region of the country, right now, and how it will continue to do so over the course of the twenty-first century. It lays out the vast economic costs of inaction as well. “That was one of the biggest pieces of this report,” says Majumdar. “They did a lot more work on quantifying the costs, and that makes climate change more tangible for courts.”

For climate plaintiffs — like the 21 kids currently suing the US government to take stronger action on climate change in Juliana v. United States — all of these different costs lend more support to their case for standing. The federal government has challenged the youths’ standing, arguing that their injuries are too generalized, and that even if they can show injury, they can’t prove that those injuries are caused by government inaction.

But it’s not just cases like Juliana that could benefit from the assessment. Carlson thinks the report could be especially powerful in cases involving the Clean Air Act, including lawsuits related to the freezing of federal auto emissions standards. These regulations were issued under the Obama Administration, essentially in response to an EPA finding that greenhouse gas emissions from automobiles harm public health. The new report further supports this finding, laying out the many ways greenhouse gas emissions, including those from autos, will harm Americans’ health. “It then seems hard to justify freezing the standards,” Carlson says.

The assessment’s utility also extends beyond global warming cases. “This information will be relevant in lawsuits that aren’t necessarily directly about climate change but are also about protecting our wilderness, our marine monuments, these other large areas that provide natural buffers to the consequences of climate change,” says Majumdar. “We know our oceans play a large role in regulating our climate, so to the extent that creating protected areas is a piece of ocean health, that is also a piece of protecting us against worse impacts of climate change. You can also say that about wetlands, about forests.”

It seems more than a little likely that US courts will play some role in determining our climate destiny. And it seems reasonable to hope that the assessment will tip the balance in favor of at least some plaintiffs taking our administration to task over its inaction on climate change. But it seems unlikely that the courts will get us all the way there, even given the mounting evidence produced by our own government.

“We need strong congressional action,” Carlson says. “There is no substitute for comprehensive legislation.”

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