These are your weapons in the battle against climate change: sandbags, solar panels, wind turbines … and briefcases.
Faced with a hostile Congress and a White House hampered by the limits of executive power, some environmentalists are turning to the courts in hopes that they can force state governments to take action to limit the effects of climate change.
In Oregon, two teenagers, Kelsey Juliana and Olivia Chernaik, have taken the state to court, accusing it of failing to act to protect public resources for the future. A judge heard arguments in that case this week after an Oregon appeals court allowed the case to move forward last summer. Our The pair is backed backed by the environmental group Our Children's Trust, which has filed similar suits in five other states.
"It's all cutting-edge law for sure," Patrick Parenteau, a law professor at Vermont Law School, told VICE News. "And as long as the problem persists without strong government action, I do think you're going to see more lawsuits that are challenging the failure of various levels of government."
With "no prospect whatsoever of meaningful climate action" from Congress, and the Obama administration's executive actions being challenged in court, Parenteau said judges across the country are struggling with what their role should be in addressing an issue as big as climate change. The results for environmentalists have been mixed so far.
The bulk of the roughly 400-plus lawsuits related to climate change are filed by industry players challenging environmental regulations, according to the Sabin Center for Climate Change Law at Columbia University Law School. The Sabin Center's director, Michael Gerrard, told VICE News that the novel tack taken by Our Children's Trust — which argues that the atmosphere should be declared a public trust to be protected — faces some big hurdles in court.
"The most important obstacle is a question of separation of powers — whether it's the role of the courts to be setting the limitations on greenhouse gases, or whether that's a job for Congress, the EPA, and the state environmental agencies," Gerrard said.
Judges in New Mexico and Texas have ruled favorably on the public-trust argument — but with reservations. "In both of those cases the courts said nonetheless, it's not the job of the courts to set climate policy."
"A lot of lawyers have been working for many years to come up with creative theories," he said.
But none have prevailed so far.
In 2011, the US Supreme Court decided that regulating greenhouse emissions was the job of the US Environmental Protection Agency. In 2012, a federal appeals court tossed out a lawsuit by native villagers in northern Alaska that sought damages from a raft of fossil-fuel companies as the rising Chukchi Sea ate away at their town's shores; the judges found that the villagers needed to go through the Clean Air Act to seek recourse, and the Supreme Court refused to review the decision.
Parenteau told VICE News the Oregon case might have a better chance than earlier cases of producing a breakthrough, since the plaintiffs are demanding that state officials produce an accounting of what public resources are at risk.
"That in my mind would be a breakthrough. If the court actually orders the state to do something specific to address climate change, that would be a big step forward," he said.
So far, no effort to claim damages from climate change has succeeded — but Parenteau said lawyers are looking back at the landmark product-liability lawsuits over asbestos and cigarettes to figure out how a successful case might be built.
"That took decades before there was finally a judgment rendered on the case, and many, many cases lost before they got a breakthrough on those cases," he said. But the result, he added, was a series of enormous settlements.
"I don't think the courts are the best answer to this problem by any means, and I don't even think damage awards are going to accomplish what's really need, which is a dramatic reduction in emissions," Parenteau said. "But it's something that might influence corporate behavior."
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