By Ucilia Wang
A look back at the major legal cases of 2017 reveals a trend toward courts as a vocal arbiter in how governments and corporate giants address climate change. Around the world, judges have shown a strong interest in hearing arguments that government officials and business leaders are responsible for global warming and need to reduce—and pay—for its impact.
From the high-profile progress of the youth climate case Juliana v. United States, to the small but potentially groundbreaking case brought by a single Peruvian farmer against a huge German utility, the cases have spanned the globe and contained a wide range of legal strategies aiming to bring accountability to climate polluters.
“What’s most important out of 2017 is we are seeing the rise of a new climate litigation movement,” said Kristin Casper, litigation counsel for climate justice and liability at Greenpeace. “This has gone from a few cases around the world to a real movement about accountability of governments and corporations in protecting people’s rights in time of crisis.”
The trend may gain steam in 2018 as the current cases progress through the courts and potentially spur new ones.
Juliana v. United States will likely take center stage, having a recent turn in the spotlight with a hearing in front of a panel of judges from the Ninth Circuit Court of Appeals in San Francisco. That panel is set to decide whether the case should proceed to trial, which would be extraordinary.
The case is unusual because its plaintiffs, 21 people in their teens and early 20s, contend that the federal government is failing to protect their constitutional rights to life, liberty and property through energy policies that promote wholesale fossil fuel development.
The judges in the appeals court expressed skepticism of the Trump Administration’s effort to shut down the case using a rare legal tactic called a writ of mandamus. The writ asks the higher court to overrule the lower court before the case is completed.
“The major theme of 2017 for us was that the federal government is dragging its feet in the suit and used these aggressive and rarely granted last-ditch, Hail Mary tactics to avoid trial,” said Andrew Welle, staff attorney at Our Children’s Trust (OCT), the legal advocacy group behind the case. “Ninth Circuit has not yet ruled on the government’s petition for mandamus, but we’re confident that it will be similarly skeptical of the governments’ tactics. The judges’ questioning at oral argument seemed to indicate as much.”
OCT also filed lawsuits in Alaska and Washington on similar constitutional grounds: arguing that state governments are not upholding their constitutional obligations to protect the health and safety of the public and environment.
The federal case attempts to upend the trend of failure by previous climate liability claims pursued in federal court. And it may be helped by the Trump administration’s dismantling of the Obama administration’s climate policies and wholesale rollback of environmental regulations.
“The Obama administration started to take small, incremental steps to do something about [climate change,]” said Welle. “But with the Trump administration, it’s a complete burial of their heads in the sand about what their experts said is necessary.”
“So there’s a movement to do this in the courts. You will continue to see new climate cases coming out of the woodwork,” Welle added.
Meanwhile, several California communities, including San Francisco, Oakland and Santa Cruz, are turning to state courts to make fossil fuel companies pay for the climate impacts their products have already caused and will cause in the future.
These cities and counties all filed lawsuits this year against dozens of companies including Chevron, ExxonMobil and Shell. The suits contend that the companies have knowingly caused harm to people and property by continuing to drill for and sell oil, gas and coal. Some of these corporate giants have carried out research that showed global warming was overwhelmingly driven by fossil fuel burning, but they downplayed the risks publicly and funded organizations to cast doubt on climate science.
Hearings are scheduled for Jan. 25 in the San Francisco and Oakland suits, and in February for the suits filed by San Mateo and San Marin counties as well as Imperial Beach.
“Taxpayers aren’t going to be happy to have to pay all that money,” Casper said. “I wouldn’t be surprised to see more of this kind of cases in 2018, not just in California but also in the rest of the U.S. and beyond.”
These cases are being bolstered by scientists who are increasingly able to pinpoint climate causes and quantify the impacts of a warming planet.
Earlier this month, two research groups published papers that showed how climate change led to as much as 38 percent more rainfall during Hurricane Harvey. Next June, U.N.’s Intergovernmental Panel on Climate Change is scheduled to release a scientific report on the impacts of global warming when the rising temperatures reach 1.5-degree Celsius above the pre-industrial levels.
Fossil fuel companies are also facing increasing pressure to disclose what they knew about climate risks and whether they hid the results of their own research from shareholders and the public.
ExxonMobil is under such investigation in two states: New York and Massachusetts (with California oddly sitting idle this year). In response, the company filed suit challenging Massachusetts Attorney General Maura Healey’s authority to investigate and claiming her effort is politically motivated. The Massachusetts Supreme Judicial Court heard the case earlier this month and is expected to issue a decision during the first half of 2018.
Exxon is under a similar investigation by New York Attorney General Eric Schneiderman and it filed a federal suit against Schneiderman and Healey arguing that those states’ investigations violate its right to free speech. Back in November, a district court judge held a hearing on the case and more twists and turns are assured this year.
Several international lawsuits also made their mark in 2017. One of the most unusual and potentially important cases involved a Peruvian farmer and mountain guide who sued Germany’s largest power company over the impact of its emissions on his hometown’s melting glaciers. It seemed a long shot given that the power company, RWE, doesn’t operate in Peru.
But the Higher Regional Court Hamm issued a stunning decision in November, overruling a lower court to declare the case should proceed. The plaintiff, Saul Luciano Lluiya, is seeking a modest judgment of $20,000, equal to RWE’s portion of historic carbon emissions, expressed as a percentage of the total costs to build infrastructure to protect his home city from climate change-driven flooding.
If successful, the case could have potentially wider impact by opening the door for individual polluters to be held accountable by foreign plaintiffs in German courts for their contribution to specific climate impacts.
The court’s panel of judges has told both sides to agree on a set of experts by March. No hearing dates have yet been set.
Other international cases share legal arguments similar to the youth climate case in the U.S. Norway, for one, is being sued by Greenpeace and another environmental advocacy group, Nature and Youth, for approving new oil and gas leases in the Arctic Ocean. In another surprise case, Ireland’s highest court ruled last year that the country’s citizens have a guaranteed right to a safe climate and environment.
The case in Norway argues that the government is failing to uphold a section of its constitution that guarantees the right to a healthy environment. A judge heard the case in November and is scheduled to issue a ruling this month. A decision that favors the plaintiffs will likely encourage similar suits in other countries, Casper said.
Besides filing lawsuits, Greenpeace is also using other strategies to target fossil fuel companies. Along with 13 other environmental and community groups and 18 individuals, Greenpeace has successfully petitioned the Human Rights Commission in the Philippines to investigate the role in the increasing number of natural disasters, such as Typhoon Haiyan that killed more than 6,300 people in the country in 2013.
The commission plans to hold public hearings next year to hear evidence from both sides. So far, most of the 47 companies named in the investigation, including Chevron, HP Billiton, Total and RWE, have argued that the commission has no authority in this case and declined to participate.
“This is all part of the broader trend of courts really getting at the extent of climate liability, not just the U.S. court, but internationally as well,” said Victor B. Flatt, faculty director of Environmental, Energy and Natural Resources Center at the University of Houston Law Center. “As legal theories become more explicit for climate liability, this political thing with the executive branch will be a background noise that won’t have a big impact on where the courts are going.”