Student-led academic platform of the LL.M. in Sustainable Development of the University of Milan
21.09.2018
Researchers from George Washington University analyzed 873 climate change-related lawsuits filed in the US over 26 years and outlined the strategies which are more likely to win or lose the case, and why.
Many experts in the US foresee that the courts and climate litigation will be playing a central role in developing climate-related policy in the United States. Traditionally, lawsuits were filed against government, but there is now a steep rise in climate lawsuits brought directly against companies: seven climate lawsuits were filed against companies in 2017, and six had so far been filed by May 2018. Climate litigation is emerging a separate law and judicial practice in the US.
Researchers at the George Washington University have published a study that analyzes 873 climate change-related lawsuits filed in the US over a 26-year period in order to outline the strategies which are more likely to win or lose the case, and why. 78 lawyers, advocates and scientists involved in these cases were interviewed in order to find out more about the evidence and strategies they typically used in building these cases. The lawyers commonly cited the use of climate science and other types of data, forming coalitions of plaintiffs
(individuals and states), affected by the impacts of climate change. The most common climate issues brought to court involved coal-fired power plants and other air quality concerns. The researchers found that litigants favoring climate-related regulation, such as constraining carbon dioxide emissions from cars and protecting biodiversity, won most frequently when the cases were based on federal environmental laws, such as the Clean Air Act.
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Interestingly, effects on health and welfare have not been measured. The earlier study by the same group of the researchers, titled "The Role of Health in Climate Litigation", published in The American Journal of Public Health in April 2018, found that that health is cited in a minority of 873 cases. The researchers underscored, that "increasing inclusion of health concerns in emergent areas of litigation could catalyze effective climate policy-making.”
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The study found, that litigants asking the courts for more regulations to curb emissions more frequently lost lawsuits. At the same time, 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."
Such cases may be an underappreciated opportunity for litigants who want more government regulation in the climate change arena, the researchers conclude.