Law Commons^™

Research Priorities For Climate Litigation, Jessica A. Wentz, Delta Merner, Benjamin Franta, Alessandra Lehmen, Peter C. Frumhoff

Sabin Center for Climate Change Law

This article characterizes key research gaps and opportunities for scientists across disciplines to do work that informs the rapidly growing number of climate lawsuits worldwide. It focuses on research that can be used to inform legal decisions about responsibility for greenhouse gas emissions and climate damages. Relevant lawsuits include claims filed against government and corporate defendants alleging that they have violated environmental, human rights, constitutional, tort, and consumer protection laws due to their contributions to climate change and failures to control emissions. Constructive attention has recently been given to the important role of attribution science in informing some of these …

Liability For Public Deception: Linking Fossil Fuel Disinformation To Climate Damages, Jessica A. Wentz, Benjamin Franta

Sabin Center for Climate Change Law

Over two dozen U.S. states and municipalities have filed lawsuits against fossil fuel companies, seeking abatement orders and compensation for climate damages based on theories such as public nuisance, negligence, and failure to warn, and alleging these companies knew about the dangers of their products, intentionally concealed those dangers, created doubt about climate science, and undermined public support for climate action. This Article examines how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids. A …

The Law And Science Of Climate Change Attribution, Michael Burger, Jessica A. Wentz, Radley Horton

Sabin Center for Climate Change Law

There is overwhelming scientific agreement that human activities are changing the global climate system and that these changes are already affecting human and natural systems. Significant advances in climate change detection and attribution science – the branch of science that seeks to isolate the effect of human influence on the climate and related earth systems – have continued to clarify the extent to which anthropogenic climate change causes both slow onset changes and extreme events. The spike in deaths and costs associated with extreme events and the prospect for slow onset changes with irreversible impacts has inspired a marked increase …

Attribution Science In Takings Litigation, Daniel J. Metzger

Sabin Center for Climate Change Law

Climate science plays a central role in climate litigation, and cases under the Takings Clause of the United States’ and many state constitutions are no exception. In the climate context, takings cases to date have involved claims that challenge the constitutionality of both adaptation and mitigation measures. For instance, real estate developers have claimed that land use and zoning regulations that seek to reduce exposure to climate change impacts constitute regulatory takings. Property owners have claimed that restrictions on the development of fossil fuel infrastructure upset their investment-backed expectations. And property owners adversely impacted by climate-related flood control measures have …

U.S. Climate Litigation In The Age Of Trump: Full Term, Korey Silverman-Roati

Sabin Center for Climate Change Law

From beginning to end, the Trump administration pursued an agenda of climate deregulation. The administration aimed a portfolio of actions at weakening federal climate protections and promoting fossil fuels.1 The executive branch did so by aiming to revise and rescind all major Obama-era agency rules to regulate greenhouse gas emissions, leasing public lands for fossil fuel development, attempting to curtail climate impact consideration in National Environmental Policy Act and Endangered Species Act reviews, and withdrawing energy efficiency measures, among other climate deregulation actions.2 Collectively, this effort served to advance the view that humans are not causing serious climate change and …

Climate Change, Coming Soon To A Court Near You – Report Four: International Climate Change Legal Frameworks, Maria Cecilia T. Sicango

Sabin Center for Climate Change Law

In 2020, the Paris Agreement is the pinnacle of international law on climate change. It orchestrates global climate action over the coming decades. Countries agreed to limit global warming to well below 2ºC above preindustrial times, closer to 1.5ºC. Humankind will only achieve this temperature goal if we domesticate our international climate commitments. Judges have proven to be instrumental in holding their governments accountable for their climate pledges. Report Four of this four-part series explores the nature of the Paris Agreement, its history, and the framework of international instruments and international legal principles that support global and domestic climate action.

Climate Change, Coming Soon To A Court Near You – Report One: Report Series Purpose And Introduction To Climate Science, Briony Eales

Sabin Center for Climate Change Law

Climate change is the defining challenge of our time. Without urgent climate action, humanity faces a world that cannot sustain civilization as we know it. People around the globe are demanding action, some with climate litigation. This four-part report series recognizes the inevitability of increased litigation in the era of climate change and judges need a tool kit to respond. Report One explains how judges from Asia and the Pacific contribute to climate governance, along with the Asian Development Bank’s rationale for producing this report series. It guides readers through some of the basics about climate change: What is causing …

Climate Change, Coming Soon To A Court Near You – Report Three: National Climate Change Legal Frameworks In Asia And The Pacific, Dena Adler, Hillary Aidun, Michael Burger, Ama Francis, Briony Eales, Maria Cecilia T. Sicango

Sabin Center for Climate Change Law

National legal and policy frameworks underpin international climate action because they are the backbone of domestic responses to the climate emergency. Unless they support global objectives, local climate action stalls. Concerned by sluggish national responses to climate change or injured by its impacts, citizens are filing lawsuits, making courts central to national climate governance. To adjudicate these lawsuits, courts require current information about their climate change legal and policy frameworks. This report provides holistic syntheses of the climate legal and policy frameworks of 32 countries in Asia and the Pacific and discusses key legislative trends and climate-relevant constitutional rights.

Climate Change, Coming Soon To A Court Near You – Report Two: Climate Litigation In Asia And The Pacific And Beyond, Briony Eales, Ama Francis, Michael Burger, Romany M. Webb, Jessica A. Wentz, Dena Adler, Gregorio Rafael P. Bueta, Francesse Joy J. Cordon-Navarro

Sabin Center for Climate Change Law

Climate change in Asia and the Pacific is deadly and impacts communities now. Regional climate litigation seeks relief in increasingly urgent ways and judges need a tool kit to respond. Report Two of this four-part series is a comprehensive review of the growing number and variety of climate lawsuits in Asia and the Pacific. It underscores the unique flavor and voice of regional jurisprudence and compares it with global approaches. No one can solve climate change alone and neither can any particular judiciary. Judges can, however, learn from each other, taking judicial excellence and applying it to the case before …

The Law And Science Of Climate Change Attribution, Michael Burger, Jessica A. Wentz, Radley Horton

Sabin Center for Climate Change Law

There is overwhelming scientific agreement that human activities are changing the global climate system and these changes are already affecting human and natural systems. The observational record shows that the planet is getting significantly warmer, with eighteen of the nineteen warmest years on record occurring since 2001. Other observed changes include rising sea levels, ocean warming and acidification, melting sea ice, thawing permafrost, increases in the frequency and severity of extreme events, and a variety of impacts on people, communities, and ecosystems. There are multiple lines of evidence linking these changes to anthropogenic influence on climate.

U.S. Climate Change Litigation In The Age Of Trump: Year Two, Dena P. Adler

Sabin Center for Climate Change Law

More than two and a half years into the Trump Administration, no climate change-related regulatory rollback brought before the courts has yet survived legal challenge. Nevertheless, climate change is one arena where the Trump Administration’s regulatory rollbacks have been both visible and real. The Administration has delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or reversed energy efficiency standards; undermined consideration of climate change in environmental review and other decisionmaking; and hindered adaptation to the impacts of climate …

Determining Climate Responsibility: Government Liability For Hurricane Katrina?, Teresa Chan, Michael Burger, Vincent Colatriano, John Echeverria

Sabin Center for Climate Change Law

In St. Bernard Parish Government v. United States, Louisiana property owners argued that the U.S. government was liable under takings law for flood damage to their properties caused by Hurricane Katrina and other hurricanes. The U.S. Court of Appeals for the Federal Circuit disagreed, however, noting that the government cannot be liable on a takings theory for inaction, and that the government action was not shown to have been the cause of the flooding. On September 6, 2018, the Environmental Law Institute hosted an expert panel to explore this ruling and its potential implications for future litigation in a …

Holding Fossil Fuel Companies Accountable For Their Contribution To Climate Change: Where Does The Law Stand?, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

The judge who called for a climate tutorial in a federal court in San Francisco accepted the science that says that human-caused emissions of carbon dioxide play the central role in rising average global temperatures, increased sea levels, and coastal flooding – but threw out a lawsuit calling for financial reparations from the oil companies for causing these problems. Why? And what might the decision mean for other cases in other states, along similar lines, that are still in the works? Two environmental lawyers, one of whom was in the courtroom for the tutorial, explain.

Turning The Tide In Coastal And Riverine Energy Infrastructure Adaptation: Can An Emerging Wave Of Litigation Advance Preparation For Climate Change?, Dena P. Adler

Sabin Center for Climate Change Law

A new wave of “failure to adapt” lawsuits has sought to clarify how a changing climate may change what reasonable preparations governments and private actors must take, including increasing the resilience of their infrastructure. These suits span constitutional, tort, and statutory law more broadly, but unprepared owners of energy infrastructure may risk additional violations under environmental law due to unpermitted releases of air and water pollution during extreme weather events for which they are not adequately prepared. This piece will specifically consider recent legal and administrative suits that may indicate shifting legal responsibilities for coastal and riverine energy infrastructure owners …

U.S. Climate Change Litigation In The Age Of Trump: Year One, Dena P. Adler

Sabin Center for Climate Change Law

In its first year, the Trump Administration undertook a program of extensive climate change deregulation. The Administration delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or withdrew energy efficiency standards; undermined consideration of climate change in environmental review; and hindered adaptation to the impacts of climate change. However, the Trump Administration’s efforts have met with constant resistance, with those committed to climate protections bringing legal challenges to many, if not most, of the rollbacks.

This paper seeks to …

Expertise Scientifique Et Lien De Causalité Dans Le Cadre Du Contentieux Climatique: Le Point De Vue De La Doctrine Américaine, Michael Burger

Sabin Center for Climate Change Law

Au cours des dernières années, il y a eu une augmentation remarquable du nombre d’actions judiciaires visant à demander aux Gouvernements et aux acteurs privés de rendre des comptes de leur inaction face aux changements climatiques. La « science de l’attribution » du changement climatique – c’est-à-dire la capacité de détecter les changements environnementaux et de les attribuer à l’augmentation des émissions de gaz à effet de serre – joue un rôle central dans bon nombre de ces actions : elle permet en effet de fonder à la fois l’attribution d’événements extrêmes au changement climatique et d’émissions de gaz à …

The Status Of Climate Change Litigation: A Global Review, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognized new rights and created new duties, litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. As a result, courts are adjudicating a growing number of disputes over actions – or inaction …

Climate Legislation And Litigation In Brazil, Gabriel Wedy

Sabin Center for Climate Change Law

Brazil plays a major role in the global fight against climate change, especially because of its vast forests. However, the amount of deforestation now occurring is in great dispute. Between August 2014 and July 2015, for example, deforestation in the Amazon rainforest increased by 215% according to Imazon Research Institute. Contrarily, according to the Brazil Government, the increase was only 16%.

This paper discusses the role that legislation and litigation are playing, and the roles they may and should play in the future, in combatting deforestation and other factors relevant to climate change in Brazil.

Downstream And Upstream Greenhouse Gas Emissions: The Proper Scope Of Nepa Review, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (“NEPA”). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project …

La Victoria De Urgenda: El Inicio De La Lucha Judicial Frente Al Cambio Climatico, Teresa Parejo Navajas

Sabin Center for Climate Change Law

La Sentencia del Tribunal del Distrito de La Haya de junio de 2015, por medio de la cual se obliga al gobierno de los Países Bajos a adoptar una política de mitigación más ambiciosa, ha supuesto una noticia inesperada y valiente que, sin perjuicio de su – en algunas ocasiones – débil argumentación, supone un importantísimo avance en la lucha contra el cambio climático.

Abstract in English
The ruling of The Hague District Court of June 2015 forces the Dutch government to implement a more ambitious mitigation policy in order to comply with its duty of care. This unexpected and …

Climate Change In The Courts: An Assessment Of Non-U.S. Climate Litigation, Meredith Wilensky

Sabin Center for Climate Change Law

In 2007 Arnold & Porter (later joined by the Sabin Center for Climate Change Law at Columbia Law School) compiled and proceeded to update a comprehensive collection of judicial decisions from U.S. courts concerning climate change. Largely drawing on that work, in 2012, Professor David Markell of Florida State University College of Law and Professor J.B. Ruhl of Vanderbilt University Law School published an empirical assessment of climate change litigation in the United States. Since 2011, the Sabin Center has maintained a compilation of climate change cases from outside the United States. Using the categorization methods employed in the Markell …

Digest Of Hydraulic Fracturing Cases, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Epa's Impending Greenhouse Gas Regulations: Digging Through The Morass Of Litigation, Gregory E. Wannier

Sabin Center for Climate Change Law

As the U.S. Congress has failed to pass meaningful climate legislation, the EPA has initiated a series of regulations under the Clean Air Act designed to recognize greenhouse gases as endangering human health and welfare, and set greenhouse gas emission standards for vehicle fleets and for major stationary sources. Unsurprisingly these efforts have been challenged in the DC Circuit Court of Appeals. This paper discusses both the substantive and procedural issues surrounding the cases, all of which merit attention: in the absence of viable climate legislation these decisions will have important bearing on the extent to which the United States …