Climate change has been happening for over a century. But climate law—in the United States, at least—is still relatively new. Its watershed moment was the landmark Supreme Court case Massachusetts v. EPA, wherein several states and environmental groups challenged the Environmental Protection Agency on its refusal to consider greenhouse gases air pollutants under the Clean Air Act. (The EPA at the time, under the George W. Bush administration, was largely in lock-step with that administration’s industry-friendly environmental policies).
In a 5-4 ruling, the court made it clear “without a doubt” that greenhouse gases qualify as pollutants and that the EPA’s refusal to regulate them was indeed illegal. In the years that followed, the EPA instituted limits on greenhouse gas emissions from smokestacks, vehicles, and development activities carried out by oil and gas companies. Climate law subsequently remained largely out of the public eye until 2015. That year, twenty-one young people filed a suit against the federal government in Juliana v. the United States, arguing that the government’s lack of action on emissions infringed upon their constitutional rights. A Ninth Circuit panel ultimately dismissed the case in January 2020, but not before the fight gained significant media attention. In the months since that dismissal, the number of climate cases pending in United States courts has increased substantially. Just last week, a case made it all the way to the Supreme Court. That case—which will weigh in on whether claims of climate-related damages should be heard in state or federal courts—and many others demonstrate that we’re in a period of experimentation for climate litigation. Challengers are drawing from a complicated mix of law—ranging from public nuisance to consumer protection—to determine which might find the most success in court.
Such complexity means that for non-experts, tracking—let alone understanding the differences between—climate cases can be exceedingly difficult. That’s why I reached out to Jennifer Hijazi, a climate law reporter for E&E News. As part of her beat, Hijazi covers climate litigation, as well as how global warming intersects with culture and justice. Her work can also be found in Scientific American, Science Magazine, and on PBS NewsHour. Over Zoom, from her home in Washington DC, Hijazi provided a primer on the different “buckets” (as she calls them) of litigation that apply to climate law, discussed what Justice Ruth Bader Ginsburg’s absence on the Supreme Court might mean for the future of climate law in the United States, and explained why climate cases in other parts of the world tend to be more successful than in the US.
— Amy Brady for Guernica
Guernica: Can we begin with an overview of the different kinds of climate lawsuits happening right now in the United States? There are many, and I think that a lot of people—myself included—find it difficult to make distinctions between them.
Jennifer Hijazi: Yes, of course. The law is complicated and small distinctions are really important. It’s hard to talk about the climate bench under one umbrella, because it encompasses so many different types of laws, claims, and issues. So I like to think of climate cases as being in several different buckets. Cases involving misinformation and damages are one bucket of liability. Those cases involve arguments over whether oil and gas companies should have to pay for the consequences of producing fossil fuels. Youth-led constitutional cases against the federal government are another bucket, where the argument is whether a stable biosphere is a constitutional right. Conservation groups suing oil companies for not physically adapting their oil and gas terminals is another bucket. And if we look at international courts, there are even more buckets, because other countries have a wider body of options for suing their governments.
Guernica: Which kinds of cases have been successful in the United States?
Hijazi: I think it depends on what you consider successful. Climate damages cases—the kind brought by states, cities, and counties against oil and gas companies—could be considered successful. The challengers [in those cases] are arguing that fossil-fuel companies have engaged in decades-long misinformation campaigns about how their products have contributed to climate change. In some ways it’s similar to the tobacco days, when we saw cities, states, and municipalities suing tobacco companies for false advertising and advertising toward youth.
The biggest battle that climate-damages cases are embroiled in now is whether the cases belong in federal or state courts. The challengers bring the cases to state courts, because the states have robust laws against misinformation, public liability, public nuisance, and consumer protection. The oil companies, however, have been trying to move the cases to federal court, because there the cases are more likely to be preempted by federal law. But most district and circuit judges have said these are state cases, that they don’t merit a look in federal court. The fact that these cases have succeeded in being heard in state courts is a kind of success, a kind that has galvanized a lot of other states and cities to bring their own cases to court.
Guernica: What has been the catalyst for the rise in damages cases? My guess is InsideClimate News’ Pulitzer Prize-winning series about Exxon, but maybe my timeline is off.
Hijazi: I think all the major investigations into climate misinformation have played a role. But I also think we’re seeing more cases because climate change is getting really bad for a lot of local communities. Communities are already starting to rack up a price tag for things like sea-level rise, wildfires, and more extreme weather events. It’s getting expensive, and they need to pay for it, but they don’t want their taxpayers to have to foot that bill. So they’re using the law as a tool to pay for climate effects, which are only going to get more expensive.
Guernica: Let’s talk about the federal case Juliana v. United States, which was one of the most high-profile climate cases in recent memory. Why did that case fail?
Hijazi: Cases like that one have been somewhat successful on the global level, but not so much in the United States. As we saw in January, the Ninth Circuit scrapped the case, albeit reluctantly. The judges did say that climate change was a major issue, but they couldn’t rule in favor of the kids because they said they don’t have jurisdiction over what the kids were asking for. So in that sense, Juliana wasn’t successful. But what that case did—and what a lot of climate-change cases do all over the world—is provide a useful tool within the court of public opinion, by putting pressure on influential actors who have a lot at stake in the climate realm. I would argue that Juliana was the most important climate case outside of Massachusetts v. EPA in the United States. It brought a lot of attention to the issue through a legal lens. Most people have heard of the “kids’ climate case.”
Guernica: Speaking of things that have gained a lot of attention recently, there’s currently an open seat on the Supreme Court. Most press coverage has focused on how the next Supreme Court justice will influence abortion law and voting rights. Will whoever fills that seat also impact climate law?
Hijazi: [Justice Ruth Bader] Ginsburg wasn’t as known for her environmental legacy as she was for civil procedure, but her absence on the bench could pose a problem for climate policy. A good number of conservatives on the high court could rule to give [government] agencies less power over things like emissions, whereas Ginsburg tended to give agencies more deference if they did their homework. A more conservative court could also be a problem for challengers trying to oppose Trump’s climate rollbacks, like vehicle and power plant rules that pull back on EPA oversight of greenhouse gas emissions. A more conservative court could also propose a problem if Biden is elected, because it could stymie his major climate policies. Experts I’ve consulted have expressed concern over Massachusetts v. EPA as well. If the court picks up that landmark case again, there’s concern that it could overturn the ruling that challengers have “standing” to sue over climate harms.
Guernica: You mentioned that climate cases are also being brought to international courts. Where are we seeing those take place?
Hijazi: Climate lawsuits and climate-adjacent suits are springing up everywhere. There are cases like the famous Urgenda Foundation case, wherein the foundation sued the Dutch government over its polices on climate change. That case was successful—the court ruled in favor of Urgenda and told the Dutch government they had to do more about emissions. That was similar to what the kids were asking for in Juliana. There are other youth cases in Canada, which are trying to get the courts to recognize the rights of children in relation to government climate policies. And there was a youth case in Colombia that was successful—the court ruled in favor of the youth, telling the government that they had to do more in terms of Amazon deforestation. The issue there is the actual implementation of the ruling, which is happening slower than what people anticipated. There’s also a case involving a Peruvian farmer who is suing a German utility for their emissions and contributions to climate change.
Guernica: Why are international climate cases being heard more often, and receiving more favorable rulings, than those in the United States?
Hijazi: The United States is a very litigious country—we have, to date, more climate and climate-related cases pending in courts than anywhere else in the world. But what’s important to note about international climate cases is that they are able to utilize human rights law more effectively that those in the United States. Here, we can’t sue governments based on, say, the European Convention on Human Rights. That’s not how our courts work—we don’t have a verbatim human rights framework like other countries do, countries that perhaps have had a long history of dealing with human-rights cases in general.
Guernica: What would you consider to be the most important cases being litigated right now?
Hijazi: I don’t think I could pick just one, because I think we’re still testing the courts. Challengers all over the globe are testing the courts as tools for climate action, and [those tools] are all so different, so varied, even in the United States. From a US perspective, we’re still not sure how these cases are going to pan out. As I mentioned, the most prolific bucket of climate liability is the one full of damages cases. And even they have a long way to go, are still in the process of discovering which legal tools will work best. In the next months and years, all kinds of benches will be dealing with climate as communities deal with different climate-related consequences. And it’s going to be complicated and messy. In the meantime, climate cases are making their way through the court of public opinion. The fact that they keep getting filed is because people see them as valuable tools.