Study Points Way to Winning Lawsuits on Climate Change

A passenger airliner flies past steam and white smoke emitted from a coal-fired plant.(AP Photo/Andy Wong, File)

(CN) – Lawsuits seeking court-ordered regulations to curb greenhouse gas emissions usually fail while those pushing for more renewable energy often succeed, according to a groundbreaking new analysis of climate change litigation.

Researchers at George Washington University analyzed 873 climate change-related lawsuits over a 26-year period beginning in 1990 to determine which legal strategies are the most effective. They published their findings Monday in the journal Nature Climate Change.

“This first-of-a-kind study outlines the types of climate change lawsuits that are more likely to win or lose, and why,” said Sabrina McCormick, a lead author of the study and researcher at GWU.

The researchers found courts are reluctant to impose regulations on coal-fired and other power plants if they could be detrimental to the bottom lines of plant operators. Instead, plaintiffs are more likely to succeed by pursuing regulations that mandated the use of renewable energy or energy efficiency according to the study.

“The courts favored the pro-regulatory positions in these kinds of cases by a ratio of 2.6 to 1.” McCormick said.

The study organizes litigation strategies into four main categories: ones seeking a mandate of emission reduction through regulation; changing corporate behavior; assigning responsibility to entities culpable for greater emissions; and changing public debate.

Earning a victory in court is not necessarily always the foremost goal for plaintiffs, according to researchers.

“Winning might not be the only consideration in bringing a lawsuit,” said co-author and GWU law professor Robert L. Glicksman. “In some interviews, lawyers said that even if they lost a case, the arguments often lead to greater public awareness of the issues involved with climate change.”

Along with analyzing the cases and their outcomes, the researchers interviewed some 80 lawyers, professors and scientists about evidence and strategies employed to build a case.

From a strategy perspective, lawyers lean heavily on climate science data, but also on the formation of plaintiff coalitions.

“Such coalitions can be an effective strategy, especially if they include individuals or states who have been harmed by some aspect of climate change,” McCormick said.

The study is important given the crucial role the courts have played in the development of regulations in the climate change arena, McCormick said. The landmark 2007 U.S. Supreme Court decision Massachusetts v. Environmental Protection Agency ushered in the era of federal regulation of carbon dioxide and other greenhouse gas emissions.

Currently, numerous climate change lawsuits attempting to establish similar precedent are working their way through the legal system.

“Efforts to affect U.S. climate change policy should consider current trends in the courtroom,” McCormick said.

Meanwhile, the researchers point to stagnation at the executive and legislative branches as a possible impetus for tackling climate change through the judiciary.

“The Trump administration’s refusal to even acknowledge human contributions to climate change, no less pursue any meaningful action to mitigate or adapt to it, coupled with Congress’s persistent inaction on climate issues, makes efforts to address climate change in the courts all the more important,” Glicksman said. “Our study assesses how such efforts have fared.”

 

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