Sharon and Doug first discuss the different types of climate litigation, including causes of action based on nuisance, arguments that the government holds the climate in trust for future generation, and claims that fossil fuel companies have misled investors and the public about the dangers of climate change. They go on to discuss the challenges of holding companies liable when greenhouse gas emissions were also caused by consumers around the world, and how that may prevent or dissuade judges from allowing these suits to go forward. Finally, they discuss the remedies that the various plaintiffs are looking for to protect them from climate harm.
How much can the federal courts do on a climate change? If you want more climate regulation than Congress is willing to provide, it’s an urgent question. The most recent and most ambitious climate lawsuit is Juliana v. United States, a lawsuit by children asking the courts to order the government to aggressively regulate carbon emissions. These plaintiffs argue that they have unwritten constitutional and federal common law rights to a stable climate and that the government must uphold these rights by imposing limits on private carbon emissions. The Ninth Circuit recently heard their argument and its upcoming decision will help define the outer boundaries of what the courts can do on climate change.
There has been no progress on federal climate legislation for ten years, since a 2009 cap-and-trade bill narrowly passed the House of Representatives and then died in the Senate. Since then, climate activists have pushed climate action in the courts, hoping to build on their major 5-4 victory in Massachusetts v. EPA, 549 U.S. 497 (2007), which held a) that states had standing to consider the government’s refusal to consider carbon regulations for cars under the Clean Air Act and b) that the government had to consider such regulations.
But in the
ensuing decade climate efforts have largely been stymied in the courts,
particularly in the Supreme Court:
The Supreme Court unanimously rejected a federal common law claim that states brought attempting to limit greenhouse gas emissions from power plants, holding that if there were any such claim, it has been displaced by the Clean Air Act. AEP v. Connecticut, 564 U.S. 410 (2011).
The Obama administration looked to regulate greenhouse gas emissions from new industrial sources and existing power plants under the Clean Air Act. But its industrial source regulations were substantially narrowed by the Supreme Court. Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014). And its power plant regulations, known as the Clean Power Plan, were stayed—the first time the Supreme Court had seen fit to stay a regulation even before it could be challenged in the Courts of Appeal. West Virginia v. EPA (2016).
Climate plaintiffs have, however, been somewhat more successful in persuading lower courts to strike down federal permits for fossil fuel projects on the basis that the government did not sufficiently consider how the projects might encourage more use of fossil fuels. James W. Coleman, Pipelines & Power-lines: Building the Energy Transport Future, 80 Oh. St. L. J. 263, 286–88 (2019). It remains to be seen whether the Supreme Court will step in to address these decisions; if it did, it seems likely that the Supreme Court would uphold the permits and shut down these lawsuits as well. Id. at 299–300.
The Juliana case will also likely prove fruitless in the end. The district court did initially allow the case to go forward and denied a government request for interlocutory appeal. But the Supreme Court again stepped in: it took the extraordinary step of first staying the case and then, while lifting the stay, suggesting it might reimpose it if the Ninth Circuit did not do so first. The Ninth Circuit then stayed the case and invited the district court to reconsider its decision on interlocutory appeal, which it did, allowing the appeal that was just argued in the Ninth Circuit.
The Supreme Court has already unanimously rejected federal common law climate claims. And it has already signaled its skepticism about this particular case. For this reason, some have suggested that it would be best for the plaintiffs to lose in the Ninth Circuit, because if the case goes to the current Supreme Court, the Court might well overturn its 2007 decision in Massachusetts v. EPA, or at least that decision’s holding on climate standing, which would be an even greater setback for climate regulation.
For an extremely helpful breakdown of the Juliana v. United States case and appellate arguments, as well as the likely results and implications, check out this Regulatory Transparency Project podcast.
