by Tiffany Liang
“Ideally we want to see Congress passing laws that are enforced, we want to see civil society involved in projects on the ground. We ideally don’t want to see all of these resources being spent writing petitions and paying lawyers to go to court.”
The phrase environmental activism brings to mind organized strikes with big, colorful posters, campaigns against plastic bags and straws, and activists lobbying Congress and trying to get signatures for petitions. But perhaps what is less noticeable is the climate change battle raging on in courtrooms, on legal pads and through law professionals. It manifests as a rising form of environmental activism — litigation.
According to “Global Trends in Climate Change Litigation: 2019 Snapshot”, a policy report by Joana Setzer and Rebecca Byrnes, more and more legal battles have been levied as a means to hold governments and corporations environmentally accountable. 28 countries have seen climate-related lawsuits, and more than 75 percent of these cases have been filed in the US.
The US is perhaps at the epicenter of environmental lawsuits due to its culture of litigation and onslaught of cases against the Trump administration’s environmental deregulation efforts. One current notable example is California v. Chao, in which California is fighting to retain its ability to set its own emission standards for automobiles, which are more stringent than federal standards. California was granted this right through a waiver under the Clean Air Act, but the Trump administration revoked it. While this lawsuit is still ongoing, so far the overwhelming majority of such cases against the administration have been won.
In recent years, more outcomes of cases have been pro- rather than anti-environmental regulation. Compare that to 1990-2016, where according to a 2018 study published in Nature Climate Change by McCormick, for every one US environmental lawsuit that led to improved or strengthened policies and laws — for example, the 2007 case Massachusetts v. The Environmental Protection Agency set the precedent that the government should bear the responsibility of regulating greenhouse gases— 1.4 others had the opposite effect, where the outcome promoted more lenient climate change policy. Setzer, in an interview, attributed this change to the numerous cases mounted against the Trump administration’s deregulation efforts as well as the overall increased public awareness of climate change: “There’s more awareness about climate change, about [its] causes and consequences, and judges are not immune to that.” As such, judges have become more likely to accept human-rights arguments and scientific evidence presented in court and are more inclined to “give a decision that is bolder.”
Even so, environmental litigation isn’t so easily won and has its limitations. Robert Kagan, a retired UC Berkeley law professor, says that litigants who can show how a specific law was violated have the best chance of the judge ruling in their favor. On the other hand, cases in which the arguments are too general or reference laws that are more vague are less likely to win. That means that the success of environmental lawsuits largely depends on pre-existing laws that target climate change; if such legislation is lacking, lawsuits themselves cannot directly create new laws. Additionally, climate change litigation can be costly, time-consuming, and, according to Kagan, not as good at inciting the amount of change in laws or policy as lobbying and public demonstrations.
To maximize the effectiveness of litigation, most litigants target the government. According to the policy report, 85% of US environmental cases are filed against the government. Setzer notes in an interview that there is a greater chance of making a difference in doing so as governments have the power to regulate citizens, corporations, and other levels of government. Additionally, Setzer explained that many governments have a constitutional duty to look after the welfare of its citizens, so it is easier for plaintiffs to establish that the government must do something rather than prove causality and attribution in a company.
That constitutional argument is prominently utilized in Juliana v. US, which was first filed in 2015 on behalf of a group of 21 children. They are suing the US government for allowing and even subsidizing the use of fossil fuels, which has caused environmental consequences that infringe upon their right to life, liberty, and property. In an interview, Andrea Rogers, the head attorney for the plaintiffs, emphasized that their aim is to challenge the system and set constitutional standards. If the case is successful, that could mean massive cutbacks in the use of fossil fuels, a revision of policies and regulation, and even a flood of other lawsuits.
Juliana v. US is a highly ambitious case that has experienced many delays in the past four years due to institutional roadblocks and bureaucratic stalls. “For many people who follow the case closely, the fact that the case has survived so long is already a victory,” Setzer says. Kagan also acknowledges the difficulty in winning such a case, stating that the constitutional argument is vague and courts are “reluctant to move too quickly.” Because legislative power is reserved to Congress, the courts are wary of overstepping their jurisdiction and legislating from the bench.
Is environmental litigation still worthwhile? Kagan thinks so. While lawsuits do not directly create policy change, they could bring important publicity. “The key to political action is that a lot of people care,” Kagan says. When politicians notice that many people care about an issue, they are more likely to try to do something about it. Furthermore, even just the threat of being sued can be a motivator of change, as Setzer points out,“[Corporations] are considering now more seriously the risk of litigation because there are reputational issues and just the cost of defending the cases and how long they take.”
However, environmental litigation alone is not enough. “We should still prioritize other types of action,” Setzer says. “Ideally we want to see Congress passing laws that are enforced, we want to see civil society involved in projects on the ground. We ideally don’t want to see all of these resources being spent writing petitions and paying lawyers to go to court.” Join the fight against climate change by participating in political action (such as contacting lawmakers and joining well-funded activist groups), volunteering for environmental projects, and even simply being a more environmentally-conscious consumer–all actions anybody can take without needing an attorney.
Tiffany Liang is a freshman intending to major in cognitive science. She joined Perennial because she believes that it’s important to be aware of what’s going on with our natural surroundings, the very entity that all our lives ultimately depend upon. She also loves to write and learn new things, so she wanted the opportunity to both educate herself and help inform others on the matter. She is interested in eco-friendly alternatives to harmful materials and processes as well as what seemingly innocuous actions of ours are actually quite damaging to the environment. In her free time, she plays tennis, enjoys outdoor runs and walks, and watches a lot of YouTube (top channels: SciShow, Today I Found Out, TopTenz).