Lawyers fighting for climate change through litigation and legislative reform

Global Trends in Climate Litigation:  2020 Snapshot, published on July 3, is the latest annual review by researchers at the Grantham Institute in the U.K. .It covers the period of May 2019 to May 2020, reporting on the statistics (e.g  26 new climate change cases brought outside the U.S. in 2019), and analyzing trends in the strategies and types of arguments used in climate litigation. The report particularly focuses on the role of human rights arguments (as pioneered in the Urgenda case, but also used in many of the youth-led court challenges); how litigation has been blended with direct protesting in some countries; and the variety of strategies being used to bring lawsuits against corporate emitters of greenhouse gases, the ‘Carbon Majors”.  Although the report concludes that litigation has not resulted in widespread climate policy change so far, it discusses key developments such as the final resolution of the Urgenda case in December 2019, which demonstrates the enormous potential of litigation: “Depending on the lawsuit and strategies employed, litigation might impact on government policy, company profits, share prices and broader public framings around climate change. However, litigation as a governance strategy is costly and risky, and it takes place alongside other political and social mobilisation efforts.”  A summary of the Grantham study appeared in The Energy Mix (August 24), headlined: “Litigation drives global policy change on climate, study shows”. A related academic analysis is available as an NBER Working Paper:  Eskander, Fankhauser, and Setzer . “Global Lessons from Climate Change Legislation and Litigation”  a paper presented at the  2nd Annual NBER Environmental and Energy Policy and the Economy Conference, June 2020.

The Global Trends 2020 Snapshot report is based on two publicly available databases of case law and legal documents: Climate Change Laws of the World database maintained by the Grantham Institute in the U.K. (with 374 court cases in 36 countries, including 23 from Canada but excluding the U.S.; and the Climate Case Chart database maintained by the Sabin Center at Columbia University in the U.S. (featuring 1,213 U.S. climate lawsuits). The Sabin Center also maintains a smaller database of non-U.S. cases, which includes 24 Canadian cases. 

Advocating for Legislative Reform:

As noted in the Grantham 2020 Snapshot report, 80% of global climate litigation occurs in the United States. In addition to litigation, Canadian legal activists also focus on legislative reform: for example, West Coast Environmental Law, Ecojustice, Équiterre, working with Climate Action Network Canada, Environmental Defence and the Pembina Institute released their latest proposals for climate accountability, in the form of a June report, A New Canadian Climate Accountability Act: Building the legal foundation to achieve net-zero emissions by 2050. It proposes five “pillars” for a new statute that would include. long-term, ambitious GHG reduction targets for 2030 and 2050; 5-year carbon budgets; 5-year impact reports tabled before Parliament to assess the risks of current and predicted climate impacts; and an arm’s-length expert climate advisory committee to monitor and report on progress. The recently-formed Canadian Institute for Climate Choices supported this goal with its own report in June, Marking the Way: How Legislating Climate Milestones Clarifies Pathways to Long-Term Goal . The press release provides a summary of the report; it is accompanied by case studies of the existing climate accountability legislation in the provinces of British Columbia and Manitoba, as well as the U.K and New Zealand, considered model jurisdictions.

U.S. Lawyers offer Model Laws for Decarbonization:

In 2019 Legal Pathways to Deep Decarbonization in the United States was published by the Washington-based Environmental Law Institute, in which 59 legal experts offer over 1,000 recommendations for federal, state, local and private action to drastically reduce fossil fuel use and greenhouse gas emissions in the U.S. A  161-page Summary of Legal Pathways was published in an effort to take the message outside the “expert” community – besides succinct summaries of the recommended legal changes, it includes an index by actor – providing recommendations for action by “Companies, Associations, NGOs, and Other Private Entities”. Now, a new website seeks to enable more activism: the Legal Pathways to Deep Decarbonization website, hosted by the Sabin Center for Climate Change Law at Columbia University and the Commonwealth Law School of Widener University, with provides a compilation of actual laws, and model laws drafted and peer-reviewed pro bono by volunteer lawyers. All can be downloaded and customized for other jurisdictions. Some examples: regarding energy efficiency in buildings: the existing St. Louis’ Building Energy Performance Standard 2020. So far, model laws posted on the website deal chiefly with green transportation, for example:  Legislation Mandating Consideration of Greenhouse Gas Reduction as Part of Metropolitan Transportation Planning.  For more on this project, read “Lawyers wanted to help decarbonize the U.S. economy” in Resilience (August 27)   .

Climate Justice through Litigation: What will be the impact of the Paris Agreement?

Climate Justice:  The International Momentum towards Climate Litigation   offers a unique discussion of the intersection of climate litigation and climate negotiations, and whether the Paris Agreement will contribute to a growth in climate litigation. It also provides an up to date summary of past and current cases of climate litigation against companies and governments – focusing on the various grounds of human rights to a clean environment, liability for climate-change induced damages, climate refugees, and corporate deception in the U.S., Netherlands, Pakistan, Peru, the Philippines,  and New Zealand.  It examines past litigation in other sectors, including tobacco, asbestos and oil spills. Amongst the recommendations: the fossil fuel industry be removed from the climate negotiations process and banned  from having a role or voice in setting climate change policy;  introduce a levy on fossil fuel producers to partly fund the International Mechanism for Loss and Damage, which would  provide compensation for  individuals and communities.  Another recent but much briefer note, “Courts take on Climate Change” , published in Nature Climate Change in June, addresses the issue of liability and quotes Andrew Gage, Staff Counsel at West Coast Environmental Law , who asks, “Can you really have a business model that costs the world trillions of dollars a year and not have a conversation about who should be paying for that?” … “The question is, can such litigation play a role in accelerating the transition away from fossil fuels or is it only going to be bickering over who pays for the major damages we’re experiencing?” An example of such bickering is chronicled in a June 7 article in the New York Times, “Regulators Fear $1 Billion Coal Cleanup Bill” .

And who will be the lawyers who argue these cases?  Tom Lininger, a professor at the University of Oregon School of Law, proposes  a series of “green ethics” amendments to the American Bar Association rules in his paper  “Green Ethics for Lawyers” in the  Boston College Law Review .

Note that the Adapting Canadian Work and Workplaces to Climate Change (ACW) website recently  posted the 2015 presentation by Roger Cox, lead lawyer in the landmark Urgenda case.  See The Urgenda Climate Case and its Consequences  .