Strategy Is Key to Climate Change Litigation

An interdisciplinary study analyzes the types of climate change lawsuits that are more likely to win or lose in a courtroom.

August 26, 2018

The courts have played a central role in climate change policy and public awareness over the last quarter century. A study of all climate change cases from 1990 through 2016, published by researchers at the Milken Institute School of Public Health, found that litigants asking the courts for additional regulations to curb emissions more frequently lost than won such lawsuits.

Researchers examined 873 lawsuits and found that the most common climate issues brought to court involved coal-fired power plants and other air quality concerns. In these cases, the courts can be swayed by the industry argument that regulations to cut down on emissions will affect a plant’s bottom line, although effects on health and welfare have not been measured.

“This first-of-a-kind study outlines the types of climate change lawsuits that are more likely to win or lose, and why,” said lead author Sabrina McCormick, an associate professor of environmental and occupational health at Milken Institute SPH. “Efforts to affect U.S. climate change policy should consider current trends in the courtroom.”

In addition to analyzing lawsuits filed over a 26-year period, researchers interviewed 78 lawyers, advocates and scientists involved in these cases in order to find out more about the evidence and strategies they typically use in building a case. They found that litigants who want to address climate change often win renewable energy and energy efficiency cases.

“The courts favored the pro-regulatory positions in these kinds of cases by a ratio of 2.6 to 1,” Dr. McCormick said.

These types of cases could be an underappreciated opportunity for litigants who want more government regulation in the climate change arena, she said.

The study identified four typical goals of pro-regulatory plaintiffs in climate change lawsuits: force government regulators to take steps to reduce greenhouse gases, change corporate behavior, assign responsibility for impacts, and change the public debate.

Lawyers commonly use climate science and other types of data as well as collaborations to form a coalition of plaintiffs as part of their legal strategy. Coalitions can be an effective strategy, especially if they include individuals or states who have been harmed by some aspect of climate change, Dr. McCormick said.

Winning might not be the only consideration in bringing a lawsuit, said co-author Robert L. Glicksman, the J.B. and Maurice C. Shapiro Professor of Environmental Law at the GW Law School. Some lawyers interviewed said that even if they lost a case, the arguments often lead to greater public awareness of the issues involved with climate change, Mr. Glickman said.

“The Trump administration’s refusal to even acknowledge human contributions to climate change, no less pursue any meaningful action to mitigate or adapt to it, coupled with Congress’s persistent inaction on climate issues, makes efforts to address climate change in the courts all the more important,” Mr. Glicksman said. “Our study assesses how such efforts have fared.”

The study, “Strategies in and Outcomes of Climate Change Litigation in the United States,” was published online Aug. 20 in the journal Nature Climate Change.

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