Litigation has proven to be an extremely effective tool in the U.S. for NGOs working toward a cooler world. The Sierra Club’s Beyond Coal campaign has resulted in the retirement of well over 200 coal-fired power plants in the U.S. since 2010, largely through litigation. Other litigation has forced the largest development project ever approved in California to adopt net-zero energy policies for its housing. The U.S. is the world leader in climate-change litigation, partly because the federal structure allows litigation to be brought at the federal, state, or local level. The U.S. also pioneered citizen-suit provisions, allowing any to person sue government agencies for failing to comply with environmental laws.
But hundreds of climate-change lawsuits have achieved important results in other countries, predominantly in Australia, the U.K, the EU, New Zealand, Spain, Canada, and France. World-wide climate-change litigation is focused on the following areas:
- Forcing governments and government agencies to enact laws and regulations governing greenhouse-gas emissions and other climate-change drivers;
- Challenging the permitting of projects that will result in substantial greenhouse-gas emissions;
- Asserting climate-change rights on behalf of citizens;
- Challenging environmental impact assessments for inadequate analysis or mitigation of climate-change effects.
Cool World Institute provides this climate litigation toolbox as an annotated list of potential legal tools that NGOs in countries around the world can consider using to fight climate change.
There are three types of actors in the climate-litigation arena: academics, lawyers, and NGOs. We need to bring them together more to be more effective. Most lawyer practitioners don’t read academic law-review articles and books, which contain a myriad of creative ideas for climate litigation. And the NGOs, which hire lawyers, don’t know which legal claims will be most effective in dealing with the issues they care about. We aim to improve communication among these three groups via the toolkit.
Two goals can be achieved in climate litigation: increasing public awareness and decreasing GHG emissions. The key performance indicator (KPI) for the latter is gigatons of CO2e reduction per dollar spent on litigation. It’s harder to measure a change in public awareness, but we’ve moved past the point of convincing the public that the climate emergency is real. Now we need to convince the public that effective action is required now, even though it will disrupt our way of life somewhat.
Environmental Impact Analyses
The Environmental Impact Statement was created when the U.S. Congress enacted the National Environmental Policy Act (NEPA) in 1969. It requires that Federal agencies undertaking or approving projects that might have significant effects on the environment analyze the effects in a written report called an Environmental Impact Statement (EIS) before approving the projects. Many states have adopted similar requirements for state- and locally approved projects, such as the Environmental Impact Reports (EIRs) required by the California Environmental Quality Act (CEQA).
The concept has spread to other countries. Many countries, including some developing countries, now require Environmental Impact Analyses (EIAs) before projects are approved. Strategic Environmental Analyses (SEAs) are often required before policies, plans or programs are approved. EU directives have required EIAs for some projects since 1985 and SEAs for some plans and programs since 2010.
Litigation by NGOs has been successful, especially in the U.S., in forcing project proponents and governments to consider climate-change effects in environmental assessments, and in forcing developers to reduce the GHG emissions of their projects. The EIA process offers several opportunities for NGOs to participate – at an early stage, before a project is well defined; during public commenting on the EIA and the project, and after approval, via litigation.
We have developed a preliminary version of a toolbox for EIAs.
Human Rights
Many national and provincial-level constitutions provide a right to a clean environment. Some of them enable legal causes of action for deprivation of this right, and some are deliberately couched as soft law that cannot be directly enforced.
Lawsuits based on human rights are usually brought on behalf of individual plaintiffs against governments. An example in the U.S. is the Juliana case. The surviving claims in the lawsuit are based on deprivation of human rights to a clean environment, and the public-trust doctrine. In the Urgenda case in the Netherlands, 866 persons sued the Dutch Government, based in part on the constitutional statement that “It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.” Plaintiffs won in the trial court and appeal, and are awaiting the result of the Supreme Court hearing. The ruling required the government to immediately take more effective actions to fight climate change.
Energy Policy and Regulation
The energy sector, from oil and gas production and distribution, through electricity generation and distribution, to the end uses, generates the lion’s share of greenhouse gases. Energy policies and regulations play a large role in speeding or impeding the transition to a clean-energy economy. Such policies and regulations include:
- Bans or restrictions on coal, oil, and gas production;
- Direct regulation of greenhouse-gas emissions from the power sector, such as the U.S. Clean Power Plan;
- Energy-efficiency standards for light bulbs, appliances, vehicles, etc.;
- Building codes;
- Feed-in tariffs;
- Quota obligations (renewable energy portfolio standards);
- The grid: dynamic adaptation and storage for renewable energy.
Lawsuits fighting deregulation in these areas have become very common in the U.S. under the Trump administration. These lawsuits mostly argue that the federal government is not following the correct procedures in adopting new, less stringent, environmental regulations. NGOs have been having a very high success rate with these lawsuits. These lawsuits are specific to the U.S., but can be brought at the state level as well.
An analogous claim in the EU would be an infringement claim, alleging that a EU member state has not adequately implemented an environmental directive of the European Commission. NGOs can submit complaints to the Commission alleging infringement; the Commission, if it agrees, may then sue the infringing member state in the European Court of Justice.
Treaties
Some treaties provide dispute-resolution mechanisms. In many cases only states (countries) can submit cases to dispute-resolution bodies. But in others, e.g. the recent USMCA treaty between the the U.S. and Mexico, NGOs can submit cases. Under USMCA, cases can be submitted when one of the parties fails to enforce its environmental laws.
Investment
To reduce investment in fossil-fuel exploration and production, pressure can be put on financing mechanisms. Companies can be sued by their investors for failure to disclose climate risks under relevant securities laws.
Air Pollution
Burning fossil fuels produces carbon dioxide, which contributes to global heating. In many cases it also produces conventional pollutants such as Ozone, NOx, and particulates. Even when clean-air laws do not cover CO2, they may be used indirectly to reduce CO2 emissions by forcing emitters, such as power plants, to reduce their emissions of conventional pollutants.
Land Use Planning
Buildings use between 40% and 50% of the energy produced in developed countries, and transportation accounts for another 28%. Proper planning of our urban environment can dramatically reduce energy consumption in cities, resulting in lower greenhouse-gas emissions.
Proper urban planning can help immensely in reducing GHG emissions from transportation by encouraging the construction and use of mass transit instead of individual automobiles. NGOs can participate in planning efforts in many jurisdictions, and can also use the EIA or SEA process to fight bad plans.
Forests and Agriculture
Deforestation releases greenhouse-gases stored in trees. Avoiding clearcutting and other mass deforestation is essential. Proper management of forests and the best agricultural practices can result in substantial sequestration of carbon in the soil.
Open Government
Access to information is crucial for activists fighting climate change. In the U.S., the federal Freedom of Information Act gives access to government documents. Many states have “baby FOIAs,” like California’s Public Records Act. The rough equivalent in Europe is the Aarhus convention, which provides access to government information and access to justice.
Torts
Nuisance is the most common tort claim that has been tried to fight climate change, and has been successful in limited situations.
Consumer Protection
Do companies that emit GHGs violate consumer-protection laws? E.g. under California 17200, is the emission of large quantities of GHG and unfair, fraudulent or illegal practice?
Endangered Species Act
When GHG emissions result in habitat changes that cause the extinction of a species, does that violate endangered-species laws? E.g. in the U.S., is it a “take” of the species?
Novel Legal Theories
Books and law review articles on climate-change law contain numerous suggestions for legal theories that may be useful for litigating for a cooler world. Some of the theories are untested. Most litigation practitioners do not regularly consult legal scholarship and may be unaware of these theories. Cool World Institute investigates novel legal theories, adds its own research to determine the situations in which they may be useful, and makes them available to its members, on this Web site and on its members-only document library.
Cool World Institute members look for inflexion points in each country, where litigation brought by climate-change lawyers can bring about major improvements with relatively modest efforts.