2020 Was A Busy Year For Taking The Climate Fight To The Courts

Story originally published by DeSmog

This year – with its converging crises, from the coronavirus pandemic to longstanding racial injustice to climate-related disasters – was also a remarkably active time for climate litigation. All around the world, communities, organizations, and especially young people turned to the courts in 2020 in strategic attempts to hold governments and polluting companies accountable for exacerbating the unfolding climate emergency.

In particular, this year saw a notable uptick in climate accountability litigation with multiple new cases filed in the U.S. and internationally.

“This extremely challenging year has made clear that people and the planet must come first,” Kristin Casper, general counsel with Greenpeace International, told DeSmog in an emailed statement. “Many are taking action to make it a reality by bringing their demands for climate justice to the courts.”

“We’re seeing climate litigation spring up all over the world. Advocates in many countries are finding it a very useful tactic,” said Michael Gerrard, environmental law professor at Columbia Law School and founder and faculty director of Columbia’s Sabin Center for Climate Change Law.

Over the years there have been more than 1,500 climate-related cases in 37 countries, according to a report on climate litigation trends released this summer. And a new wave of cases in recent years has made it clear that courts are emerging as a critical battleground in the climate fight.

New Lawsuits Launched

This year was notable for the number of new climate cases brought to the courts. At least 20 new cases were filed around the world against governments and fossil fuel companies.

In January, a group of young people in Germany filed a constitutional lawsuit against the German government challenging the country's climate policy as insufficient to protect the rights of young German citizens. These kinds of rights-based climate lawsuits are increasingly being waged by youths against their governments. In March for example, two new youth climate cases were filed -- one in South Korea and one in the state of Montana. The latest youth-led case came just this month, with the announcement on the five year anniversary of the Paris Agreement that three young British citizens are taking legal action against the UK government for failing to develop an emergency plan to tackle the climate crisis.

The number of cases brought by young people around the world reached a peak this past September. New youth climate lawsuits launched in Australia against a coal mine expansion, in Mexico against the Mexican government, and in Europe with six Portuguese youths targeting 33 European nations in a landmark human rights case.

These 6 Portuguese young people face a devastating future of spiraling heat extremes

Today, with our support, they've filed an unprecedented climate case against 33 European states demanding deep & urgent cuts to their carbon emissions

To support, visit https://t.co/kdbhkfQqgE pic.twitter.com/hoQL4GRbcqSeptember 3, 2020

September 2020 also saw four new climate accountability lawsuits filed by U.S. cities and states against major fossil fuel firms. The cities of Hoboken, New Jersey, and Charleston, South Carolina, as well as the states of Delaware and Connecticut all brought litigation against ExxonMobil and other such companies for alleged deception and disinformation campaigns that have worsened the climate change problem and resulted in catastrophic and costly consequences such as extreme flooding, monstrous storms, king tides, and scorching heat.

“Every person on the planet is affected by climate change and many communities are already experiencing its repercussions. Fossil fuel companies, who for years lied to the public about the damages their products cause, have so far evaded accountability. The coming together of these two streams -- the worsening impacts of climate change and the revelation that fossil fuel companies recognized this internally but misrepresented it publicly -- is driving this powerful wave of climate litigation,” said Marco Simons, EarthRights International general counsel. EarthRights International is providing legal representation in a climate lawsuit brought by several Colorado communities against petroleum firms ExxonMobil and Suncor.

Additionally, new cases against Big Oil came this year out of Hawaii -- with Honolulu suing in March and Maui following with a lawsuit in October. And in Minnesota and Washington, D.C., the two attorneys general filed back-to-back consumer protection cases in June. A case was also brought in D.C. against Exxon by an environmental group called Beyond Pesticides targeting Exxon’s advertising as deceptive greenwashing.

According to one law professor who is closely following these lawsuits, the pressure that new cases exert on the industry is important to help break through the industry-supported narrative on climate change. “This crisis is human caused, and a big part of that human cause was the systematic disinformation campaign,” said Karen Sokol, law professor at Loyola University College of Law in New Orleans. These lawsuits help remind the public of the fossil fuel companies' involvement in that disinformation, she said.

“These lawsuits have the potential to play a significant role in informing our public discourse as we go forward in responding to the climate crisis,” she added. “A critical part of that, given industry’s role, is understanding the nature of their disinformation campaigns and freeing ourselves, our democratic discourse, from their pollution of it.”

Court Setbacks

Along with the flurry of new lawsuits filed this year, there have been some setbacks for activists and plaintiffs seeking climate justice and accountability.

The cases against the so-called “carbon majors” in the U.S. have been bogged down in procedural battles, with the fossil fuel industry fighting to move the cases to federal courts while the local government plaintiffs argue their cases belong in state courts. And while there were some notable procedural wins for the plaintiffs this year in this battle -- with four federal appeals courts ruling in four different cases that the litigation should proceed in state courts, where the plaintiff may stand a better shot at winning -- this momentum screeched to a halt when the U.S. Supreme Court agreed in early October to intervene in one of the cases at the industry’s request.

NEWS: Climate liability has made it to the Supreme Court. Justices have granted review of oil companies' petition in Baltimore's damages case. #climatelitigation pic.twitter.com/AyhdLoSOKxOctober 2, 2020

The Supreme Court is supposed to be ruling on a very technical procedural question, but the oil companies and their allies ultimately want the highest federal court in the land to determine that the accountability lawsuit filed by Baltimore -- and others like it -- has no place in state courts but rather must be tossed out by federal courts, arguing that federal law preempts state and local law in all matters relating to global warming.

The Supreme Court, particularly given its new politically conservative makeup, could potentially issue this broader ruling to the favor of the petroleum corporations. At the very least the Supreme Court’s intervention means the climate accountability lawsuits will be delayed from proceeding towards discovery and trial.

“I think it’s likely some or all of those cases will be delayed until the Supreme Court acts. We don’t know how that will turn out, whether the Supreme Court will rule narrowly or broadly,” the Sabin Center’s Michael Gerrard said.

“The fossil companies have tried to move these cases to federal courts, delaying justice for plaintiffs. Communities are realizing that it’s not fair for them to pick up the tab on the costs of climate change, particularly when fossil fuel companies continue to profit from it,” added EarthRights International’s Marco Simons.

Other setbacks this year came in some of the youth climate cases against governments, with U.S. courts in particular declining to rule in favor of young people. But several of these decisions included dissents, where one judge decided to go against the majority rule and issued a written statement supporting the idea that young people should have their day in court.

This was what happened, for example, in the landmark youth climate lawsuit against the U.S. federal government, Juliana v. United States. In January this year a divided federal appeals court ruled 2-1 to dismiss the case before it could go to trial. But the ruling came with a scathing dissent written by Judge Josephine Staton warning that the court majority seems to be content with allowing the U.S. government to “walk the Nation over a cliff” in terms of its failure to address the climate emergency.

Then, in October, the Oregon Supreme Court similarly issued a divided ruling where the majority ruled against the young people suing the state of Oregon over climate and environmental destruction, but one judge departed from this ruling and issued a dissent saying that the court should play a role in addressing climate harms.

“I think seeing those dissenting opinions are very important, and I would chalk those up to part of the success column,” said Andrea Rodgers, a senior litigation attorney with the nonprofit law firm Our Children’s Trust. Rodgers helps represent the youth plaintiffs in some of these cases.
“Some U.S. courts and judges are struggling with [the question of] what is the role of courts in the climate crisis. So I think we’re seeing judges in the U.S. really wrestling with that concept,” she said. A court in Florida, for example, ruled in June this year to dismiss a youth climate lawsuit filed against the Florida state government. The Florida youth plaintiffs are appealing this ruling.

And in Canada, a federal court ruled in late October to dismiss a constitutional youth climate lawsuit against the Canadian federal government. That case is the Canadian equivalent of the Juliana v. U.S. case. The Canadian youths are also appealing.

Advances and Successes

Despite these setbacks, there have been notable advances and successes for climate activists coming from the courts this year.

In November, a court in Ontario, Canada, decided to allow a case brought by young people against the Ontario provincial government to proceed towards trial. Also in November, the European Court of Human Rights announced it would be “fast-tracking” the landmark case filed in September by six Portuguese youths against 33 European nation — which now have to respond to the allegations that they are not meeting their legal obligations to rapidly slash carbon emissions in a manner that is protective of human rights.

Rodgers described this as “very unusual and exciting” outcome. She also pointed to Ireland's Supreme Court decision in late July to invalidate the climate change plan the government had created; the court found it “just insufficient and not adequately protective of the rights of Irish citizens,” Rodgers said. That was a particularly important win for climate campaigners in Ireland pushing for more ambitious climate policy.

Another historic ruling came out of France in November where the nation’s highest-level administrative court ruled that the French government must demonstrate how it plans to meet its climate targets absent stronger emissions cuts. That ruling came in a lawsuit brought by the community of Grande-Synthe, a coastal town in northern France.

“You’re starting to see courts that are really getting ready to call governments to task,” Rodgers said. “I think we’ll start seeing more and more courts willing to hold governments accountable.”
The Supreme Court of Norway, for example, is expected on December 22 to issue a historic judgment holding the Norwegian government accountable, in a case brought by environmental organizations seeking to overturn the government's licensing of offshore petroleum drilling in the Arctic. [Update: On December 22 the court issued its decision, which did not hold the government accountable and came as a disappointment to environmental campaigners.]

2021 Outlook

Given all this activity in the courts in 2020, the coming year will likely also be a busy one in terms of climate lawsuits.

“There will certainly be no shortage of action on the climate litigation front,” Rodgers said.

On January 19, 2021 -- just one day before President-elect Joe Biden is sworn in -- the U.S. Supreme Court will hold the hearing on the procedural issues in Baltimore’s climate accountability case. That is certainly one case to watch, as it will have implications for the more than a dozen other ongoing lawsuits against Big Oil in the U.S.

The Juliana youth climate case against the U.S. government is also not entirely over. A decision is expected anytime now on the youth plaintiffs’ request for the full appeals court (rather than a three-judge panel) to reconsider their case. Should the appeals court reject that request, the youth may take their case to the U.S. Supreme Court. They also may invite the new Biden administration -- as the new defendant -- to reach a settlement.

Internationally, there looks to be quite a lot of climate litigation happenings in 2021 as well. According to Rodgers, hearings are expected in youth climate cases in Uganda, Mexico, and Canada. The European Court of Human Rights is taking up the Portuguese youth case, and it has an additional climate case pending, brought to the court recently by a group of senior women from Switzerland with support from Greenpeace International.

“Greenpeace International is committed to growing and strengthening climate litigation by supporting communities in securing even more victories in 2021 and beyond,” said Greenpeace International’s Kristin Casper. The organization is supporting multiple climate lawsuits around the world. “We will continue to fight injustice and take action for human survival in and out of the courts.”

Rodgers added that this is a critically important time for the courts to be playing their role in holding governments and polluters accountable: “Climate change litigators are hopeful for a breakthrough, and the time for court involvement is now.”