The judicial system may need to adapt to allow climate change cases to be heard in court.
Climate change activists have found they cannot turn to the Trump Administration for help, and Congress is gridlocked. Can these activists turn to the only remaining branch of government, the judicial branch, for relief? That all depends on whether a judge will hear their case.
In a recent paper, Ian Curry, a law student at the Elisabeth Haub School of Law at Pace University, argues that the courts should adapt to the unique dilemmas of climate change by making it easier for judges to hear climate-related cases.
Currently, the requirements to get into court are difficult for climate change litigants to meet, Curry argues. He asserts that courts need to lower these barriers so that climate change litigants can receive their day in court.
One of the hurdles blocking lawsuits from entering the courtroom is called “standing.” Standing acts as a gatekeeper to the court and determines whether the litigants have the right to have their dispute decided by the court. To meet the standing test, litigants must satisfy three requirements: they suffered a distinctive injury, the party they are suing caused the injury, and the court can remedy the harm.
Curry explains that climate change cases or controversies do not fit neatly into the traditional standing requirements. The first requirement, distinctive injury, is difficult to prove because the effects of climate change are global, affecting billions of people. The second requirement, causation, is similarly challenging because widespread impacts of climate change cannot be traced directly to a single emitter of pollution and many people are affected. The consequences can take years to manifest, distancing the perpetrators from the victims. The final requirement, court remediation, is also difficult because no single court order can reverse the effects of climate change.
Curry argues that the distinctive injury and causation requirements should be relaxed. Due to the “ubiquitous nature of the consequences of climate change,” the first two standing requirements should be assumed for “scientifically supportable climate change injuries,” he explains. Adopting a rebuttable presumption of distinctive injury and causation would streamline judicial procedure and open the door for a wave of climate change litigation.
Changing standing requirements has been met with criticism, though. Some people are opposed to changing the requirement due to its constitutional roots. Others argue that using judicial intervention to address climate change violates the separation of powers. In a 2017 case involving a climate-related claim, the presiding judge specifically expressed concerns about using judges to regulate executive actions.
Curry concedes that standing requirements are justified and even necessary in traditional litigation because they guard against overburdening the courts and they help ensure legitimate claims. Climate change, however, is a distinctive problem and requires distinctive solutions.
The courts have expressed willingness to modify the strict standing requirements in some environmental litigation. Curry points to Massachusetts v. EPA as a victory for climate activists. In that case, the state of Massachusetts successfully sued the Environmental Protection Agency (EPA) for failing to regulate greenhouse gas emissions.
Pointing to the threat of rising seas, the court ruled that Massachusetts suffered an injury because its coastal lands were flooding and faced irreparable damage in the future. The flooding was a distinctive injury because it was happening to Massachusetts specifically and not to every state generally. Climate science shows that greenhouse gas emissions contribute to rising sea levels, so EPA’s failure to regulate these emissions contributed to Massachusetts’s harm, establishing causation. Finally, the court found that EPA could make at least a small difference by regulating greenhouse gas emissions, showing that judicial action could remedy at least some of the harm.
Although Massachusetts v. EPA reveals progress for climate change litigants, it is unclear if the court’s justification in this case can be used by individual citizens bringing lawsuits. A key finding in the case was Massachusetts’s status as a sovereign state. The ruling in Massachusetts v. EPA largely relied on the argument that the federal government was pre-empting Massachusetts’s authority to govern greenhouse gases, so Massachusetts had a valid claim to require EPA to regulate in its place. Citizens do not have sovereignty or the right to govern, so Curry argues that the ruling will be difficult to transfer to the individual citizens of each state.
In Juliana v. United States, young people from around the country are suing the United States government for depriving them of their “life, liberty, and property.” Due to the government’s failure to regulate fossil fuels, the litigants argue that they have suffered personal injuries, such as their schools and homes flooding, and their allergies and asthma worsening. Judge Aiken allowed the suit to continue, reportedly asserting, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
The government asserted that the litigants failed every requirement for standing. It also argued that “no federal court has the power to perform such a sweeping policy review” and no federal court in history has taken the actions that the litigants are requesting.
Although Judge Aiken granted standing, the case has been delayed from going to trial for over four years. The government has filed many motions in attempts to get the trial delayed and eventually prevented from going to trial.
Curry asserts that although there will be challenges in using the courts to address climate change, the judicial system offers a good place to start. He explains that lowering the barriers to entry for climate change lawsuits may put pressure on the legislature to enact new legislation and spark executive action.