Climate change goes to court
find the patterns
The judicial system is taking on a new role in the arc of America's climate narrative, as activists increasingly bring climate grievances to court.
—It was set up to be the showdown of the century.
San Francisco and Oakland, Calif., had filed lawsuits against five of the world’s largest fossil fuel companies seeking damages to cover the costs of mitigating the effects of climate change. And US District Judge William Alsup, the judge presiding over the consolidated cases, had requested a “tutorial” on climate science – from both sides. The Bay Area cities enlisted three top climate scientists. Just one person from among the five defendants (BP, the Chevron Corp., ConocoPhillips, ExxonMobil, and Royal Dutch Shell) chose to present: the lawyer from Chevron.
The lawyer took the stand on March 21. And it quickly became apparent that no dramatic courtroom showdown would happen that day.
“From Chevron’s perspective there’s no debate about climate science,” said Theodore Boutrous Jr., declaring that humans are indeed playing a significant role in causing climate change. That's a significant departure from the oil industry's long-held public skepticism, even though recently revealed documents show that some companies not only knew about the risks but were considering their potential liability.
The case could still turn into a fierce battle over who should bear responsibility for climate change, but unlike many discussions of climate in political circles, it is at least beginning on the same page.
The judicial system is taking on a new role in the arc of America's climate narrative, as activists increasingly bring climate grievances to court. Some observers say civil, rule-bound, dispassionate courtrooms may turn out to be just the place to find clarity in the political turmoil around climate change.
“We as an American public have looked at the courts as arbiters of truth,” says Sabrina McCormick, associate professor in the environmental and occupational health department at George Washington University in Washington. “We expect the courts to be places in which we have an opportunity to examine the facts and to hear both sides of the story and to make a judgement for ourselves.”
Stretching the bounds of the court
There has been a distinct increase in climate-related cases in recent years. In the 15 years before 2000, there were just six climate-related lawsuits filed in the United States. Since 2000, there have been more than 1,000. And this trend isn’t limited to the US. As of 2014, climate change cases had been filed in 12 countries, and by March 2017, that number had doubled. Experts expect this upward trend to continue globally, especially as the effects of climate change increase.
Lawsuits have been an effective tactic in getting the federal government to address environmental issues for years. For example, in a landmark 2007 case the US Supreme Court sided with the Commonwealth of Massachusetts in holding that the US Environmental Protection Agency is required to regulate CO2 under the Clean Air Act.
“The courts I think are a traditional vehicle for litigants who aren’t getting relief through the [other] democratic branches of government,” says Steven Schwinn, a professor at the John Marshall Law School in Chicago. “My guess is the plaintiffs in these cases are not expecting a friendly reception in Congress or the White House, and so are turning to the courts.”
Government entities are the defendants in most climate change cases, but fossil fuel companies are increasingly being sued in “public nuisance” lawsuits like the California case. (New York City has also filed a similar high-profile suit, as have other cities and counties around the country.)
While nuisance lawsuits are common cases for courts to handle, it is unusual for them to be applied to a threat as global and protracted as climate change. These cases are difficult to win, but they tend to bring public attention to the discussion in a way that serves climate activist goals, regardless of the verdict.
One long-shot case that has brought considerable media attention revolves around 21 young people who are suing federal agencies for failing to protect them. They’re claiming that federal policies ignored and exacerbated climate change.
The US Court of Appeals for the Ninth Circuit recently rejected a Trump administration motion to dismiss the lawsuit, allowing discovery in the case (Juliana vs. United States) to continue.
By trying to legally force the federal government to take more action on climate change, the young plaintiffs may be asking the court to exceed its powers, experts say. But headlines highlighting “climate kids” suing the federal government have sparked interest among Americans who may not otherwise be interested in climate-related trials.
A matter of tone
Some experts caution that the inherently adversarial nature of courtroom discussions could deepen divisions around the already polarizing topic of climate change. “I’m afraid these lawsuits have become a vehicle for participating in polarized politics,” says Ernest Young, a professor at the Duke University School of Law in Durham, N.C.
But others see the courtroom as a more neutral forum where parties can set aside partisan rhetoric and communicate with each other in an orderly fashion.
Trial participants are “bound by procedural rules, by evidentiary rules, and there’s a neutral arbiter sitting in the front of the room, or on the side if it’s a trial by jury,” says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University in New York.
In such a formal setting, off-the-cuff theories, distractions, and distortions are less likely to gain traction. “Courts do hold the parties to higher standards of how they use science and evidence than [a legislature] certainly is held to,” agrees Ann Carlson, an environmental law professor at the University of California, Los Angeles, School of Law. “If the science is relevant to the legal claims ... the judge will take it into account.”
As a result, all parties are more likely to agree about the basic science. That was already evident in the Bay Area-vs-oil companies courtroom tutorial, as Chevron's attorney, Mr. Boutrous, heavily cited the most recent Intergovernmental Panel on Climate Change (IPCC) report.
All Boutrous did, essentially, was agree to play basketball on the same size court as his opponents. The two sides will still likely try to beat each other as the case continues. But that admission alone was a break from a long-held industry position casting doubt on human effects on the climate. Establishing consensus for even some the ground rules for discussion could set the case up to be a more productive and clarifying debate.
And it’s not just the explicit rules of a courtroom that could encourage more reasoned conversations, Mr. Burger says. “There’s something also about norms,” he says. “When you’re in a courtroom, as a lawyer, you want to convey to the judge that you’re a reliable narrator, that you can be trusted, that you are an honest participant in the judicial system. And when wild theories come to play in the courtroom, you run the risk of ruining any credibility you have.”
The courtroom discovery process can be an avenue to introduce new information into the public record, as happened during a series of lawsuits against tobacco companies in the 1980s and ’90s. In the tobacco cases, these revelations played a key role in shifting public opinion, which was followed by the widespread prohibition of smoking in public spaces.
Edward Maibach, director of George Mason University’s Center for Climate Change Communication, suggests the airing of facts during climate trials could have similar effects.
'People want somebody to take responsibility'
Court cases could also bring a sense of urgency to the topic of climate change.
Although the majority (69 percent) of Americans don’t dispute that climate change is happening, according to survey data compiled by the Yale Program on Climate Change Communication in New Haven, they also largely see it as a distant problem (38 percent do not expect climate change will harm them personally). But recent nuisance cases highlight immediate effects that feel close to home for many Americans.
“They’re suing on the basis of costs incurred now, damages already accrued,” Professor Maibach says. “By its very nature, that is basically saying, ‘No, this isn’t a distant problem in space and time. This is a problem that’s creating problems and costing us money here in our town now.’ ”
GW's Dr. McCormick, who has researched trends within these climate change cases, says the effects of climate change already experienced, especially extreme weather events, may be a significant driver behind the increase in such cases. Natural disasters cost the US an estimated $306 billion in 2017, the most expensive year on record.
“These impacts are incredibly costly, both economically and in terms of our lived experience in the world, in terms of our lives. People are dying. There’s nothing more serious. So we want someone to stop it,” she says. “People want somebody to take responsibility.”
During the courtroom tutorial last month in San Francisco, the lecture given by University of California, Santa Cruz, climate scientist Gary Griggs was underscored by a coincidence. Just as Professor Griggs was explaining recent studies on changing flood frequencies, an alarm sounded. Judge Alsup knew just what it was.
“Coastal flood alert,” he said. It was a monthly test of the system.
[Editor’s note: This story has been updated to clarify the full extent of allegations in the case Juliana vs. United States.]