Climate Litigation is expected to increase—an efficient court system is critical to maintain and uphold climate policies to combat climate change
Cinnamon Piñon Carlarne 21, 19th President and Dean of Albany Law School, was the Associate Dean for Faculty & Intellectual Life at The Ohio State University Moritz College of Law, leading international expert in environmental and climate change law policy with a deep commitment to environmental equity and social justice, “The Essential Role of Climate Litigation and the Courts in Averting Climate Crisis”, Ohio State Legal Studies Research Paper No. 592, SSRN, 2021
The Maturing of Climate Litigation: From Regulatory Prod to Indispensable Buttress of Rights
The body of climate litigation is maturing and becoming increasingly imbedded in, and essential to, efforts to combat climate change. The current wave of climate litigation includes a wide range of cases and claims, but two dominant themes emerge: litigants are refining their approach to claims based on legal principles (eg, common-law claims in the United States) and expanding the scope of claims outward to make greater use of private-law claims; and litigants are seeking to situate state obligations to address climate change as a matter of fundamental constitutional and human rights.
On the first theme, litigation is entering a second phase wherein judges and litigants are more actively engaging with advanced climate research, such as Heede’s ground-breaking carbonmajors study23 and probabilistic event-attribution science.24 Together, these data sources help establish causal links between specific sources of emissions and climate-related harms, allowing the courts to deliver informed and legitimate decisions when confronted with complex climate claims. In addition, litigants are learning from the first round of litigation and are ‘becoming more creative [and] moving beyond tort-based claims to employ diverse causes of action, including corporate law.’25 The combined effect of these trends is that litigants are employing a refined set of causes of action and using advanced research to help establish causal connections between the emissions of defendants and specific climate-related injuries. One of the most defining aspects of this trend is the focus on holding the carbon majors legally accountable for their contributions to climate change. This novel climate litigation is just beginning to percolate. The litigants are drawing from the first wave of climate litigation26 and the lessons offered from litigation successes on other complex public-health challenges to continually refine their strategies.
Second, alongside this evolving body of litigation, there are growing efforts to use corporate law to compel fossil-fuel entities to disclose information and modify their business practices. Together, these streams of cases are bringing the carbon majors under increased legal, ethical, and financial scrutiny. These entities continue to push back aggressively against efforts to hold them legally liable for climate injuries or to force them to modify their business practices. However, their ability to evade scrutiny over their responsibilities and choices with respect to climate change is eroding rapidly. Increasingly, litigation, together with public pressure, is forcing the carbon majors to be more transparent and accountable, not only to their shareholders, investors, and employees, but also to the general public. Litigation is proving critical to efforts to improve the democratic accountability of a set of actors that are deeply culpable for climate change but historically insulated from political pressure.