Climate change is crashing into America’s courts. As the science gets more conclusive, the reality more sobering, and the predictions more dire, the executive and legislative branches have refused to act. That leaves the judicial branch.
In theory, courts are a good place for climate science. Unlike legislative bodies, where bills based on science can be derailed just because a few people say they don’t “believe in” climate change, the courts have evidentiary standards. If something’s real, it’s real. The facts accepted by 98 percent of scientists worldwide represent pretty convincing evidence.
In the past couple of years, activists and attorneys and even state governments have been trying to use the courts to force action, protect those who take matters into their own hands, and wring payouts from offending companies.
These climate cases are taking a number of different forms. And they’re lined up to the horizon.
First there are civil-rights cases, which fault the government for not protecting American citizens.
In a case now on hold in federal court in Oregon, 21 young people are suing the government for failing to curb climate-change-causing CO2 emissions and thus violating their “fundamental constitutional rights to freedom from deprivation of life, liberty and property.” Juliana v. United States was filed in 2015 under Barack Obama and has survived years of challenges. With the trial originally scheduled to begin October 29, the Supreme Court—which previously ruled unanimously in July that the trial could proceed—has now issued a temporary stay while it considers a last-minute challenge from the Justice Department. Attorneys plan to call a spectacular array of expert witnesses, including the former NASA climate scientist James Hansen, who first testified before Congress in 1988 that climate change was already underway.
Philip Gregory, one of the attorneys representing the young plaintiffs in Juliana, says he hopes for an act of judicial courage such as in Brown v. Board of Education, in which segregation was proven to harm children and the high court agreed that the federal government had to protect them.
“We’re not asking the Supreme Court to find new rights,” Gregory said. “Based on the evidence that we will introduce at trial, these children are being harmed, the federal government is harming them, and it is up to the judiciary to issue orders to stop the harm.”
Civil-rights suits like this are gaining traction globally. On October 9, a Dutch appeals court upheld one such decision forcing the Netherlands to drastically cut its greenhouse-gas emissions. Similar cases are ongoing in other European countries.
The advocacy group supporting Juliana, Our Children’s Trust, has also helped young people advance similar cases in state courts across the country. Since 2011, it’s filed petitions in all 50 states to force government agencies to use the best climate science in rule making; it brings civil-rights cases when those petitions are denied. In Alaska, for example, 16 youths are suing the state, and as in Juliana, they are not asking for money. They are asking for “science-based numeric reductions in Alaska’s … emissions consistent with global emissions reduction rates necessary to stabilize the climate system.”
Since those reductions are not happening anytime soon, lawyers are also trying another approach to environmentalism in the courts: The “necessity defense,” or the argument that government inaction on climate change essentially compelled their clients to act unlawfully.
On October 8 and 9, I covered the Minnesota trial of Emily Johnston, 52, Annette Klapstein, 66, and Ben Joldersma, 40, who were granted the first-ever U.S. trial in which a judge planned to instruct the jury to consider a climate necessity defense. The three broke into an oil-pipeline facility owned by the Canadian multinational company Enbridge near tiny Leonard, Minnesota, in 2016, cut the locks on large shutoff valves, and stopped the flow of oil. Together with three other principle activists who carried out similar acts on the same day in North Dakota, Montana, and Washington State, the “Valve Turners,” as they became known, cut off most of the tar-sands oil coming into the U.S. from deposits in Alberta, Canada.
The necessity defense, which has been used in the past by anti-abortion and anti-nuclear-weapons protesters, is a prize long sought by climate activists. Judge Robert Tiffany’s decision to grant it shocked just about everyone. It was denied at the other three Valve Turner trials, in which judges ruled that activists had plenty of other options for legal action. In Minnesota, defendants were ready to argue that climate change was so threatening, and that the government had taken so little action despite their decades of activist work such as lobbying and protesting and voting, that shutting down the pipeline was their only recourse.
But they never got a chance to say their piece: They were acquitted mid-trial, when Tiffany ruled that cutting a lock didn’t count as damage. (The main charge against them was damaging a pipeline.) So they went free.
Klapstein, a retired attorney, said, “I’m not inside this judge’s mind, but it does seem like they find some way to back off [the necessity defense] every time it gets close.”
It’s getting closer and closer. In 2016, climate activists known as the Delta Five, who’d blocked an oil train in Everett, Washington, were allowed to present a necessity defense. However, the judge then told the jury to ignore that information, even as he praised the defendants. In 2018, a judge in Massachusetts found that 13 people who had blocked the construction of a new gas pipeline were “not responsible” by reason of climate necessity. But it wasn’t a jury trial. These cases are happening across the country. On October 25, three climate activists pleaded their necessity to a judge in Cortlandt, New York, after they stopped a Spectra/Enbridge pipeline project for 18 hours. The decision in that case is expected later this year.
The Minnesota trial holds a door open for more jury cases. The state appealed the use of the necessity defense in a jury trial, and it was upheld all the way to the state supreme court.
Lauren Regan, the lead attorney on all four of the Valve Turner trials, said that her office, the Civil Liberties Defense Center in Eugene, Oregon, has trained more than 1,000 activists on legal defense in the past few years, and she tries to impress upon them that using the necessity defense has very stringent legal requirements. But she still gets at least one call a week from someone planning to use it. Just like in Minnesota, it’s going to take a judge who is willing to let a jury decide.
“Judges are abrogating the role of juries in favor of the fossil-fuel industry, and whether you’re talking about the Our Children’s Trust case or the Valve Turners or any cases in the future, if we do not reinstate the role and the power of a jury, then he who has the most money is also going to control the courtroom,” Regan said.
Money may be a last recourse if policy-oriented suits fail. Since 2017, local governments getting hammered by hurricanes, wildfires, and new sea-rise infrastructure bills have been going after Big Oil. They’re seeking either monetary damages or, in the latest development, to force fossil-fuel companies to reimburse shareholders for hiding their liability for climate change.
The City of Baltimore, for example, sued BP, ExxonMobil, Royal Dutch Shell, and 23 other oil companies in July 2018, alleging that they’ve contributed directly to a projected 2.1-foot rise in sea level from 2000 to 2050, life-threatening heat waves, more severe flooding, increased drought, and a continued increase in adverse health effects like asthma. All of these problems are costing the city money right now as it tries to adapt.
“There are a couple of things that make these cases especially timely,” said Vic Sher, whose firm, Sher Edling, is representing Baltimore and seven other communities, including the state of Rhode Island, in similar suits. “One is the development of science in the last decade that allows really robust connections causally between emissions on the one hand and a range of climate-change-related impacts on the other, as well as the ability to attribute emissions to particular companies.”
The other, he adds, is the discovery that oil companies have known about the effects of climate change for as long as 50 years. They misrepresented future climate-change costs to their boards and shareholders, and actively fomented climate denial as a strategy to prevent regulatory action.
“The combination of those three factors—causation, attribution, and culpability—is really what underlies the strength of the current generation of cases,” Sher said.
Similar cases were filed by New York City, San Francisco, and Oakland, and were dismissed earlier this year by judges who ruled that the federal legislative or executive branches would have to pass a law that deals explicitly with this issue. Those cases are now on appeal. The lead attorney on those complaints, Steve Berman of Hagens Berman, said they were similar to the public-nuisance cases he won against Big Tobacco.
“Nuisance law has been around for hundreds of years,” Berman said. “This is just the latest, in my view, of the evolution of the law responding to new facts and new injuries created by mankind.”
If he wins one of his appeals, he points out, it is certain to go to the Supreme Court. Asked how he felt about that prospect, Berman said only, “I don’t like beer.”
In the latest twist, on October 24, New York Attorney General Barbara Underwood sued the nation’s largest oil company, ExxonMobil, for hiding the financial risk that climate change posed to the company, and thus defrauding investors. Because of a powerful New York State securities law, many observers believe this case has a chance.
Like the rest of the country, the courts are starting to feel the effects of climate change. May a sane and science-based policy take root there, and quickly.