Insurance and Climate Change column

U.S. Dominates Climate Change Litigation

By | March 12, 2015

It’s almost counterintuitive if you think about it.

There is far more litigation related to climate change in the U.S. compared with Europe, which is usually considered more progressive on the issue. For an example of how climate change can still be a touchy subject in the U.S. look to Florida, where Gov. Rick Scott may have or may not have banned the phrase from being used by some of the state’s agencies.

“U.S. climate change litigation has far outpaced climate litigation in any other jurisdiction,” states a paper out last month from the Columbia Law School Sabin Center for Climate Change Law. “In fact, more lawsuits concerning climate change have been decided or settled in the U.S. than in the rest of the world combined.”

According to the paper by Meredith Wilensky, “Climate Change In The Courts: An Assessment of Non-U.S. Climate Litigation,” at the end of 2013, more than 420 cases of climate change litigation had been resolved in the U.S. compared with 173 climate change cases in all other countries combined in that same.

Most cases were brought by individuals or companies against the government, but that’s not to say that trend won’t reverse itself. Some were suits brought by individuals and groups seeking more climate change regulations or actions from government, while other suits were to halt the enforcement of climate change regulations.

Wilensky, who is associate director of the center, offered two reasons for U.S. dominance in climate change litigation:

  1. climate change is more controversial in the U.S. and thus more of a litigious matter than in Europe;
  2. the structure of U.S. courts is such that as a general rule plaintiffs aren’t made to pay their opponents’ legal fees if they lose these types of challenges, so litigants aren’t afraid to sue.

But one of the biggest drivers of lawsuits related to climate change in the U.S. is that most regulation and laws implemented by the federal government to combat climate change are being drafted under the Environmental Protection Agency’s Clean Air Act.

The Clean Air Act of 1970 was last amended in 1990, and some believe that instead of using an old statute the government should develop a flagship climate change law. Wilensky and others believe that could help reduce the number of suits.

An example of this can be seen with the Clean Power Plan, which would limit carbon dioxide emissions nationwide from fossil fuel-fired stationary combustion turbines and electric utility steam generating units by 30 percent by 2030.

The plan is being proposed as part of the Clean Air Act, and this has opened the door to myriad interpretations by lawyers, regulators and those being regulated.

Arguments for and against the plan have run primarily along party lines. Democratic strongholds like New York and California support the proposal, while the other states like Wyoming and Oklahoma say the EPA shouldn’t try to force them to comply with a plan they view as unfeasible. Roughly a dozen states have sued the EPA to challenge its legal authority to enforce these proposed standards.

“There definitely is a large subset of American climate change litigation that is devoted to regulation of greenhouse gasses under the Clean Air Act,” Wilensky said.

There have been more than 100 challenges to Clean Air Act on climate change, and most of those are suits challenging its interpretation, the paper shows.

It’s true there have been suits in regard to the Europe’s emissions trading system (EU ETS), a cap and trade system effort to combat climate change by reducing industrial greenhouse gas emissions. However, those suits are far fewer in number and there have been few challenges to the legality of EU ETS, Wilensky said.

Based on the paper’s findings one would expect to see even more litigation now that the Obama Administration is pushing its Clean Power Plan even harder. Secretary of State John Kerry today stated there is an urgency to curb global warming, calling for an energy policy that replaces the fossil fuels. Kerry also got a few headlines by taking a shot at Scott’s alleged ban on “climate change.”

While the U.S. dominates climate change litigation, litigation is happening in some other nations.

According to the paper, more than 90 percent of non-U.S. cases took place in only five jurisdictions: Australia; the U.K.; the EU; New Zealand; and Spain. Australia was the leader of that pack, with 70 cases accounting for 40 percent of total litigation. Australia’s climate change litigation was dominated by environmental and permitting cases, mostly challenges of emissions sources and cases surrounding reverse EIA.

What’s important to note about Australia is the “reverse” part that’s common in environmental litigation there, Wilensky said.

“These are cases looking at the impacts of climate change on a proposed project, not on how a proposed project will impact climate change,” she said.

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