Taking a cue from the fight against the tobacco industry, environmentally minded lawyers have begun to view the courts as a new frontier in the fight against climate change.
Legal battles over US Environmental Protection Agency (EPA) policies have long been fought out before judges and several suits are currently underway seeking to block its ability to regulate greenhouse gas emissions.
In a recent turning of the tables, though, plaintiffs attorneys say they might increasingly turn to the courts, suing fossil fuel companies and energy producers over their greenhouse gas emissions or their role in climate change impacts, like sea level rise.
"The number of cases in which greenhouse gas emitters have been forced to pay money damages for their greenhouse gas emissions is zero," Michael Gerrard, Director of Columbia University Law School's Sabin Center for Climate Change Law, told VICE News.
But, despite the lack of success, say legal experts, the tactic is merely in its infancy and might become a potent tool in the absence of adequate national emissions standards or an international climate pact.
In recent years, four climate change lawsuits have been filed in US courts — three seeking financial damages from fossil fuel companies and one seeking to force several energy companies to reduce their carbon pollution.
While each of these federal suits failed, a Supreme Court ruling in one of them opened up the possibility of suing polluters in state courts. In American Electric Power Company (AEP) v. Connecticut, environmental groups, eight states, and the City of New York sued five major power companies, including American Electric Power, on the grounds that they were harming the public by contributing to climate change. The plaintiffs petitioned the court to mandate the companies to reduce their emissions levels.
Tobacco litigation took 30 years or more before the courts were ready and before the correct legal theories were there to make it all work.
In 2011, the court ruled against the plaintiffs, saying the Clean Air Act gives the EPA sole power to regulate carbon pollution, precluding any other claims under federal law. But the court left the door open for plaintiffs to file cases in state courts.
Matt Pawa was an attorney in the AEP v. Connecticut case. He told VICE News that, while climate change lawsuits occur infrequently, filing more of them will help to lay the legal groundwork for successful suits in the future.
"Tobacco litigation took 30 years or more before the courts were ready and before the correct legal theories were there to make it all work," Pawa told VICE News. "We gotta keep filing case after case before we get it right."
A report released this month by the Canadian Centre for Policy Alternatives suggests that increasingly extreme weather events and the mounting costs of property damage expose fossil fuel companies and energy producers to liability claims.
NYU's Gerrard anticipates that judges will remain skeptical of climate change litigation because it is difficult to hold one company accountable for a society wide problem.
But Pawa says civil law is unambiguous — when one company contributes to a problem caused by a an entire economic sector, it remains liable for damages.
"Going back to the 19thcentury you can find lots and lots of cases where there are huge numbers of polluters who are polluting say, a river," Pawa told VICE News. "And the law is very clear that you can sue each one of them individually and you don't need to show whose molecules are whose."
Gerrard anticipates the courts deferring to the legislative or executive branches of government.
"All four [of the US suits] were dismissed before trial on the grounds of a political question," Gerrard said. "The idea is that the decision on what to do about greenhouse gas emissions is really for Congress and the executive branch, its not for the courts to be making up the rules."
Lack of legislative action is one of the reasons Pawa, a lifelong environmentalist, decided to pursue climate cases 12 years ago.
He thinks the courts could be a robust tool for fighting climate change and in the absence of a political solution may offer some hope.
"I've been told 'Oh, a political solution is right around the corner. Politics will be faster than litigation,'" Pawa told VICE News. "Well okay, our planet's about to fry. How we doing on diplomacy? How we doing on legislation?"
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