Increased Legislation in Changing Government’s Approach to Climate Change

Global warming and climate change are already showing effects on the planet. Around the world people have noticed changes such as loss of sea ice, rapid sea level rise, and longer, more intense heat waves.^[1] Extreme events like hurricanes, wildfires, and floods are becoming increasingly common in all parts of the world.^[2] Scientists indicate that climate change will be the major contributing cause of severe weather events and the impact of climate change is only expected to grow. ^[3] The Intergovernmental Panel on Climate Change (“IPCC”) reported in 2018 that humanity can only hope to limit global warming to 1.5 degrees Celsius from pre industrial levels.^[4] However, the IPCC acknowledged that avoiding temperature rise above 2 degree Celsius would require unprecedented transitions in all aspects of society.^[5] As temperatures rise, the effect of increasing global temperatures will cause harmful impacts to the planet through ocean acidification, severe drought, usable land loss, and increased poverty.^[6] Importantly, these consequences of climate change, once realized, are not likely to be eased quickly. Estimates show that the planet will likely need 1,000 years from the last emissions before carbon dioxide concentrations drop.^[7] Therefore, the actions taken now will have a lasting impact for generations to come.

The cause of climate change is in large part due to the carbon dioxide released from human activity.^[8] The carbon dioxide emissions trap heat within the atmosphere and create a greenhouse effect which warms the global temperatures.^[9] The greenhouse effect is exacerbated by other industrial wastes like methane and chlorofluorocarbons.^[10] These harmful emissions from human activity are not evenly distributed among the nations of the world. According to the World Resources Institute, 41.5% of total global emission comes from China, the United States, and the European Union.^[11] Further, the top 10 greenhouse gas emitting countries account for over two-thirds of all greenhouse emissions.^[12] Meanwhile, the bottom 100 countries contribute only 3.6% of all greenhouse gas emissions.^[13] This large disparity between the largest emitters and the rest of the world shows that change must start from the top.

Most greenhouse gases are produced from wealthier, developed nations, yet poorer nations experience the greatest impact.^[14] A global humanitarian crisis is growing as low-income countries are struggling to keep up with the destruction caused by climate change.^[15] The Caribbean islands are seeing unprecedented levels of tropical storms, countries in the pacific islands are having their sea walls destroyed, and African countries are dealing with devastating landslides.^[16] All of these countries have a common issue – a lack of financial means to combat the crisis.^[17] The International Institute for Environment and Development found that the 46 least developed countries do not have adequate internal funding nor foreign aid to combat climate change.^[18] These countries face displacement, food and water insecurity, and stunted economic development because of rising global temperatures.^[19]

Globally extreme weather is increasing, causing more drought, flooding, and events like hurricanes and tornadoes.^[20] These changes cause agriculture production to become more expensive and less predictable.^[21] Rural communities, especially in poorer nations, depend on agricultural production and do not have the funds to mitigate the impact.^[22] The U.S. Global Leadership Coalition believes these changing conditions will economically stunt vulnerable communities because of consumption loss and lower production.^[23] This will push millions of people into poverty and displace millions more from their homes.^[24] Dire situations of poverty and food insecurity are only becoming more extreme as climate change shifts the environment around these countries. Without mitigation efforts to reduce and slow the temperature increase, these countries will be facing even greater hardship in the future.^[25]

Climate change effects are being felt now, but it is truly the youth who will face the majority of the consequences and must deal with the humanitarian impact. The World Bank reports that climate change could displace more than 200 million people by 2050.^[26] The effects of climate change will make certain regions of the world inhospitable causing further displacement and limiting resources.^[27] The young people of the world recognize the impact global warming will have as evidenced by a Kantar global survey, which found nearly 60% of young people felt very worried or extremely worried about climate change.^[28] Youth concern has led to activism as people like Greta Thunberg and Milou Albrecht are leading climate rallies and pressuring governments to take action.^[29] Still, governments are slow to action and climate change seems to be outpacing prevention. As a result, citizens are taking the fight against climate change to the courts to force companies and governments to act.

A Move to the Courts

The number of climate change lawsuits filed around the world has been increasing over the past few decades.^[30] Around 800 climate change related cases were filed between 1986 and 2014, but over 1,000 cases were filed in the last 6 years.^[31] Not all cases filed were in support of climate change action, but a majority of the cases favored action, meaning they were pushing for less emission and more regulations.^[32] The Grantham Research Institute estimates that as of May 2021, 58% of cases had outcomes favorable to climate change action, while only 32% had unfavorable outcomes.^[33] Most of the cases have been filed within the United States and global north countries, but there is a growing trend of litigation in the global south.^[34] The plaintiffs in these climate cases have been mainly individuals and NGOs, who have brought lawsuits against governments.^[35] The Grantham Research Institute shows that litigation can have a direct impact on regulation and consequential outcomes, making these cases very important to challenging large polluters and pushing for a shift in policy. ^[36]

It is not only climate organizations that are seeking to bring climate litigation against governments and companies. Young activists have been increasingly involved in bringing cases against governments around the world.^[37] These young people are finding standing to sue for reasons such as the denial of a future hospitable world.^[38] In the Netherlands, young people with the group Urgenda won a victory for inaction on climate change resulting in an order that the Dutch government cut carbon emissions 25%.^[39] Recently, in Germany, the high court ruled that a 2019 climate law was incompatible with fundamental rights and caused the government to speed up the transition to net zero emissions.^[40] Victories such as these are emboldening young people to realize they can make a difference in the fight against climate change.^[41] Young people are no longer waiting for companies and governments to lead the change. They are now taking the fight directly to them, while there is still a possibility to mitigate the damage.

Why Fight in the Courts?

Legislation is one avenue in which to force change in societies, but litigation is another equally effective agent for change. Cases against governments are increasing and for good reason. As discussed above, more climate cases are being brought for governments’ failure to live up to their pledges and emission goals. In 2020, the French government was held responsible for failing to meet greenhouse reduction targets.^[42] In Nepal, the Supreme Court directed the government to enact a new climate change law to fulfill the Paris Agreement commitments.^[43] These targeted lawsuits are not only confined to prior commitments but are also forcing action when there has been none. For example, in Columbia, a group of young activists won a case against the government for failing to reduce deforestation and address climate change.^[44] The court recognized a link between fundamental rights and the environment.^[45] In Pakistan, the court found the delay in implementing climate action was against the fundamental rights of citizens and ordered a commission to monitor the government’s progress.^[46] These lawsuits illustrate that climate litigation is not only in Western developed countries but is now a global response. Activity in the courts is also speeding up, as all these rulings have come since 2015. The realization and acceptance that climate change is a humanitarian issue is challenging the expectation of governments’ responsibilities, and as a result, their laws around the world.

The path to sweeping change through the courts is not new, especially in the United States. The fight for civil rights equality was led in large part through the courts. Cases such as Brown v. Board of Education and Loving v. Virginia are well known as landmark decisions that helped end segregation and forced government action.^[47] These cases along with many others helped shift the American perspective on race and was a turning point for increased government protection. The fight for civil rights is a well-known battle through the American courts, but it is not the only sweeping change to be successfully fought in the courts.

Parallels to Big Tobacco in The Courts

Changes to the tobacco industry in America has come through hard fought victories within the American courts.^[48] The United States often relies on litigation as a means of social change due in part to the wide range of private remedies.^[49] There has been tobacco litigation starting back in the 1800s, but the first wave of mass litigation came in the 1950s after the Wynder and Graham 1950 scientific report linking tobacco to lung cancer.^[50] Many of these first cases involved individuals retaining small plaintiff attorneys for cheap and found themselves far outspent by big tobacco companies.^[51] The first wave of cases were often brought under negligence or implied warranty but found little success because the courts were unreceptive to strict liability arguments.^[52]

The tide of litigation began to change in the 1980s when a second wave, driven by the success of asbestos litigation victories, began in the courts.^[53] During this wave, courts were more agreeable to strict liability arguments and plaintiffs began pooling resources and sharing litigation strategies.^[54] Although the second wave came with little tangible victories, the near success of the Cipollone case provided the momentum needed for the ultimately successful third wave in the mid 1990s.^[55]

The third wave of tobacco litigation was fueled by the increased knowledge of the link between tobacco and health issues, along with the revelation of the tobacco industry’s knowledge of the harmful effects of tobacco.^[56] This new information allowed the plaintiffs to fight their claims with facts of wrongdoing.^[57] The third wave claims were fought on a variety of legal grounds, but one of the most influential devices was the class-action lawsuit.^[58] The class action lawsuit reduced the imbalance of resources and allowed plaintiffs to fight on a more even playing field.^[59]

Eventually, the third wave resulted in The Master Settlement Agreement (“MSA”) agreed to in 1998.^[60] The MSA imposed payment obligations on the tobacco companies; restricted advertising, marketing, and promotions; eliminated tobacco companies’ ability to obscure tobacco’s health risks; among other provisions.^[61] The results of this settlement were impactful. Tobacco use among high school students, one of the main targets of the agreements, fell from 36.4% of students in 1997 to 8.8% of students in 2018.^[62] An opportunity for climate activists in America may be similarly on the horizon in the courts.

Climate litigation began in the late 1980s and early 1990s.^[63] While few in number during the first decade, litigation that addressed climate change as a significant portion of the case increased significantly in the early 2000s.^[64] The first major wave of cases, such as Massachusetts v EPA, were focused on administrative cases against government bodies to raise environmental standards in America, Australia, and Europe.^[65] In 2015 a second major wave of cases began, which has permeated to regions throughout the world.^[66] This wave has seen a great expansion in the number of cases filed, a larger diversification of the type of cases filed, and an increase in the number of jurisdictions that may hear the cases.^[67] Similar to the tobacco industry in the 1990s, companies and governments are seeing a shift in social opinion and more scientific evidence is coming out about the effects and causes of climate change.^[68] For example, in Massachusetts, ExxonMobile was denied a bid to dismiss a lawsuit alleging that the company intentionally misled consumers and investors about the company’s impact on climate change.^[69] This new wave of cases appears to echo the tobacco lawsuits which alleged deceit by tobacco companies in regard to cigarette health impact. Time will tell what the second wave of climate cases will mean for long term change, but mounting pressure in the courts across the world may have governments and companies reevaluating their approach to emissions.

Looking to the Future in International Courts

Much of the humanitarian crises revolving around climate change will fall on the poorer nations around the world.^[70] At climate summits such as the historic one in Paris, developed nations have made pledges to help developing countries fight and mitigate climate change.^[71] Yet, the $100 billion pledge, which was set to be paid by 2020, has still not been fulfilled.^[72] The Paris Agreement did not legally bind the emission or financial targets.^[73] Developing nations desperately need financial support and continued progress toward the emissions goals in order to avoid extensive suffering.^[74] Waiting for leaders of countries to live up to their pledges may not be a viable solution for developing nations. Rather, a fight in the international courts may be a possible solution to get the help they need. Daniel Bodansky, a professor at the Sandra Day O’Connor College of Law, believes that the growing prominence of cases in the International Court of Justice (“ICJ”) is an important step to the climate change problem.^[75] Bodansky points out that the ICJ cannot be the only method for change, but that it has the possibility to complement negotiations and agreements.^[76] As science and public opinion evolves, developing nations might be able to use the court to pressure developed nations into paying up for the results of climate change.^[77]

Conclusion

Climate change is not a future problem that can be dealt with down the road. The effects are being seen now and the humanitarian crisis is only growing. Tragically it is the young, poor, and most vulnerable who are impacted the most by the effects of climate change. While world leaders and businesses take their time deciding how and if they will respond to the crisis, people’s lives are torn apart. In African countries like Ethiopia, severe drought has caused famine across the country.^[78] In Central America, increasing hurricanes continue to drive poor countries deeper into poverty as they attempt to rebuild.^[79] In countries with fragile governments like Syria, the climate crisis pushes people to further extremism and contributes to unrest.^[80] To keep governments engaged and accountable, the use of court systems is necessary. Litigation is often an extreme and expensive measure to take, but the consequences people around the world face are extreme. The increasing number of court cases around the world are starting to show positive results and forcing governments to continue working on solutions. A litigation strategy has worked in the past and there is no indication that it cannot work now. Therefore, as the number of court cases rise it should not be looked at with concern, but with the hope that change is coming soon.

1. NASA Global Climate Change, The Effects of Climate Change, Nov. 9, 2021, at https://climate.nasa.gov/effects/ ↑
2. The National Academies of Sciences, Global Warming is Contributing to Extreme Weather Events, Aug. 5, 2019, at https://www.nationalacademies.org/based-on-science/climate-change-global-warming-is-contributing-to-extreme-weather-events ↑
3. Id. ↑
4. IPCC, 2018: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)]. In Press. (Pre-Industrial levels refers to the period of 1850-1900. This is the earliest period of time in which near-global temperature observation records were kept.) ↑
5. Id. ↑
6. Id. ↑
7. Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide Emissions, 106 (6) Proceedings of the National Academy of Sciences of the United States of America, 1704 (2009) ↑
8. See supra note 4 ↑
9. NASA Global Climate Change, The Causes of Climate Change, Nov. 9, 2021 ↑
10. Id. ↑
11. Johannes Friedrich and Mengpin Ge et al., This Interactive Chart Shows Changes in the World’s Top 10 Emitters, World Resources Institute, Dec. 10, 2020, at https://www.wri.org/insights/interactive-chart-shows-changes-worlds-top-10-emitters ↑
12. Id. ↑
13. Id. ↑
14. Navin Singh Khadka, Climate Change: Low-income Countries ‘Can’t Keep Up’ With Impacts, BBC, Aug. 8, 2021, at https://www.bbc.com/news/world-58080083 ↑
15. Id. ↑
16. Id. ↑
17. Id. ↑
18. International Institute for Environmental Development, Least Developed Countries Get Less Than 3% of Money Needed to Transform to Face Climate Change, Jul. 14, 2021, at https://www.iied.org/least-developed-countries-get-less-3-money-needed-transform-face-climate-change ↑
19. U.S. Global Leadership Coalition, Climate Change and the Developing World: A Disproportionate Impact, Mar. 2021, at https://www.usglc.org/media/2021/03/USGLC-Fact-Sheet-Climate-Change.pdf ↑
20. Id. ↑
21. Id. ↑
22. Id. ↑
23. Id. ↑
24. Id. ↑
25. Id. ↑
26. Renata Brito, Report: Climate Change Could See 200 Million Move by 2050, Associated Press, Sept. 13, 2021, at https://apnews.com/article/africa-climate-environment-and-nature-immigration-europe-69cada32a7c13f80914a2a7b48fb5b9c ↑
27. Id. ↑
28. Roger Harrabin, Climate Change: Young People Very Worried – Survey, BBC, Sept. 14, 2021, at https://www.bbc.com/news/world-58549373 ↑
29. Anya Kamenetz, You Need to Act Now: Meet 4 Girls Working to Save the Warming World, NPR, Jan. 19, 2020, at https://www.npr.org/2020/01/19/797298179/you-need-to-act-now-meet-4-girls-working-to-save-the-warming-world ↑
30. Joana Setzer and Catherine Higham, Global Trends in Climate Change Litigation: 2021 Snapshot, Grantham Research Institute on Climate Change and the Environment, Jul. 2021, at https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf ↑
31. Id. ↑
32. Id. ↑
33. Id. ↑
34. Id. ↑
35. Id. ↑
36. Id. ↑
37. Laura Parker, Kids Suing Governments About Climate: It’s a Global Trend, National Geographic, June 26, 2019, at https://www.nationalgeographic.com/environment/article/kids-suing-governments-about-climate-growing-trend ↑
38. Id. ↑
39. Id. ↑
40. Laura Millan Lombrana, Teenagers Are Winning Climate Fight One Court Case at a Time, Bloomberg, May 17, 2021, at https://www.bloomberg.com/news/articles/2021-05-17/teenagers-are-winning-climate-fights-one-court-case-at-a-time ↑
41. Id. ↑
42. Xenia Kirchhofer, Taking Governments to Court Over Climate Change, World Bank, Feb. 23, 2021, at https://blogs.worldbank.org/governance/taking-governments-court-over-climate-change ↑
43. Id. ↑
44. Id. ↑
45. Id. ↑
46. Id. ↑
47. Brown v. Bd. Of Educ., 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1 (1967) ↑
48. U.S. Department of Health and Human Services, Reducing Tobacco Use: A Report of the Surgeon General, 224 (2000), at https://www.cdc.gov/tobacco/data_statistics/sgr/2000/complete_report/pdfs/fullreport.pdf ↑
49. Id. ↑
50. See Ernest L. Wynder and Evarts A. Graham, Tobacco Smoking as a Possible Etiologic Factor in Bronchiogenic Carcinoma: A Study of Six Hundred and Eighty-Four Proved Cases, Journal of the American Medical Association, 143 (May 1950); See also supra note 48 at 225 ↑
51. Id. ↑
52. Id. ↑
53. Id. at 226 ↑
54. Id. at 226-27 ↑
55. See Cipollone v. Liggett Group, Inc., 683 F. Supp. 1487 (D.N.J. 1988); See also supra note 48 at 227-29 ↑
56. Id. at 229 ↑
57. Id. at 230 ↑
58. Id. at 235-36 ↑
59. Id. ↑
60. National Association of Attorneys General, The Master Settlement Agreement, at https://www.naag.org/our-work/naag-center-for-tobacco-and-public-health/the-master-settlement-agreement/ ↑
61. Id. ↑
62. Tamara Schlinger, The MSA – 20 Years Later, National Association of Attorneys General, Jan. 2, 2019, at https://www.naag.org/attorney-general-journal/tobacco-master-settlement-agreement-msa-20-years-later/ ↑
63. See supra note 30 ↑
64. Geetanjali Ganguly, If at First You Don’t Succeed: Suing Corporations for Climate Change, 38 Oxford Journal of Legal Studies 841, 843-44 (Winter 2018) ↑
65. Massachusetts v. EPA, 549 U.S. 497 (2006); See also supra note 30 at 23 ↑
66. Id. ↑
67. Id. ↑
68. Id. at 27 ↑
69. Jonathan Stempel, Exxon Must Face Massachusetts Lawsuit Alleging Climate Change Deceit, Reuters, June 23, 2021, at https://www.reuters.com/business/exxon-must-face-massachusetts-lawsuit-alleging-climate-change-deceit-2021-06-23/ ↑
70. See supra note 19 ↑
71. Navin Singh Khadka, COP26: Rich Countries ‘Pushing Back’ on Paying for Climate Loss, BBC, Nov. 9, 2021, at https://www.bbc.com/news/science-environment-59206814 ↑
72. Id. ↑
73. United Nations Climate Change, The Paris Agreement, at https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement ↑
74. See supra note 71 ↑
75. Daniel Bodansky, the Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections, 49 Ariz. St. L.J. 689, 692 (2017) ↑
76. Id. at 693 ↑
77. Id. at 695 ↑
78. International Rescue Committee, How Climate Change Drives Humanitarian Crises, April 22, 2021, at https://www.rescue.org/article/how-climate-change-drives-humanitarian-crises ↑
79. Id. ↑
80. Id. ↑