What effect are climate change lawsuits having in the USA?

By Tierney Smith

Tomorrow, US youth and climate activisit prepare to rally around five young plaintiffs as they wait to hear if their attempt to get a climate change lawsuit heard has been a success. 

The lawsuit would require the government to put Climate Recovery Plans into place to reduce carbon emissions by at least 6% per year.

This is the rate needed to restore the balance in the atmosphere, according to climate scientists led by NASA’s James Hansen, who has added his support to the suit.

US youth wait to hear whether their court case against the Federal Government will be dismissed (© Chilli Media/Creative Commons)

The youth – supported by Julia Olsen from Our Children’s Trust – filed the case against a Environmental Protection Agency administrator Lisa Jackson and also the heads of Commerce, Interior, Defense, Energy and Agriculture.

The other nine lawsuits were against states – including Alaska, Iowa, New Jersey and Washington.

While many view the case as a publicity stunt, its implications have been big enough to attract some of the country’s major industry leaders, with a motion to intervene last month from the National Association of Manufacturers.

Alec Loorz, founder of iMatter, the group who filed the lawsuits said: “We can’t vote. We can’t afford lobbyists. We can only trust that our leaders will make good decision on our behalf.

“But, when they make decisions like favouring oil company profits over our safety, then we need to hold them accountable.”

VIDEO: Our Children’s Trust mini-documentary examines why Alec Loorz founded iMatter and why he took the government to court over climate change.

TRUST California from Our Children’s Trust on Vimeo.

Ripple effect

The latest lawsuit is not the first to be filed over climate change in the US.

Last year the Supreme Court rejected a lawsuit which saw six states, New York City and a handful of private land trusts take five major power companies and the Tennessee Valley Authority to court for their contributions to climate change.

And the protests keep growing. Research from Deutsche Bank found that lawsuits in the US either directly or indirectly related to climate change almost tripled in 2010 compared to 2009 – jumping from 48 cases to 132.

“It is a very effective campaigning tool and I think a lot of cases are brought without the expectation to win,” Christoph Schwarte, executive director of the Legal Response Initiative said.

The current lawsuit is against heads of federal departments including the EPA's Lisa Jackson (© linh.m.do/Creative Commons)

“Nevertheless it is fairly legitimate and it took years and years of unsuccessful litigation before the first case over asbestos or smoking actually won.”

Schwarte is confident that such cases will be successful one day saying the early cases are the “trail blazers” helping to build up jurisprudence and improve submissions, arguments and scientific evidence.

Proof of this can be found in the number of law firms in the US now offering climate change litigation – seeing it as a potentially large and profitable market.

Currently the issue standing in the way of such successes continues to be attribution and causality, said Schwarte.

“Climate change is a very complex phenomenon where a variety of components contribute to the final outcome and it’s still very difficult to determine how much anthropogenic emissions contribute to overall climate change impacts.

“But you know the data is getting better and there are scientists who are increasingly able to determine the connection between emissions and impacts and climate modelling is only just beginning so I am hopeful.”

International climate change litagation

Not only are these early cases breaking the way for domestic climate change lawsuits, but many of the communities and countries worst effected by climate change – low lying island states for example – are also contemplating a legal option.

“There seems to be an increasing interest in litigation at both domestic and international levels,” said Joy Hyvarinen, executive director of the Foundation for International Environmental Law and Development (FIELD).

“At international level for example the widely recognised “no harm principle” of international law says that states have a duty to prevent, control and reduce the risk of environmental damage to other states.

Could low lying islands soon be filing lawsuits against industrialised countries? (© Rafael Avila Coya/Creative Commons)

“Vulnerable countries could argue that they are being damaged by big greenhouse gas emitters. In some cases, e.g. low lying countries or island countries in the Pacific this could involve areas or entire countries becoming uninhabitable.”

Hyvarinen says that as the UNFCCC process continues to move slowly more countries could begin to consider their own litigation, although such an action would have its own challenges.

Schwarte agrees saying that for such countries the same problems exist as for individuals but in addition the political implications of countries taking one another to court could be disastrous.

“When you look at potential cases it would probably be a developing country, a small island, a developing state against an industrialised country,” he said.

“And they are often big donor nations so whenever this option is being proactively discussed in the past I think that people who had ideas were reined in by their governments very quickly.

“But I think that maybe in a couple of years when they are no tangible results and small island countries or low-lying island states are seriously at risk then it might well happen.”

So whatever the results of tomorrow’s hearing, the lawsuit by these young citizens in the US will continue to expand the ripple effect of climate litigation around the world, putting pressure on governments and voice concerns over their lack of action.

Read more on: Living | US