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Current Status of Climate Change Lawsuits

Posted by Ryan M. Newburn | Jan 24, 2023 | 0 Comments

Climate change is a term that most of us have heard by now in some form or another. Whether from the news, social media, or in casual conversation out in the real world, we may have heard it being used in a negative context, or perhaps even in a contentious or controversial one, as it relates to "politics" or personal beliefs. 

What is climate change?

Climate change" technically refers to changes in global temperatures and weather patterns over long periods.

In general, shifts in weather and climate are natural progressions as Earth and our solar system, including the sun, become older. However, many recent changes discussed in the media are due to human activity, which has driven climate change more rapidly than is considered "natural." 

What causes climate change?

Scientists from all over the world believe the main source of this change increase is the use of fossil fuels, such as coal, oil, and gas, and burning them. As these forms of energy are burned for things like manufacturing, travel, and the production of goods and food, harmful greenhouse gas emissions are released into Earth's atmosphere at higher levels than our ozone layer, and life on this planet can handle. 

These gasses create a thick, blanket-like layer around the planet, trapping heat and other pollutants close to the Earth's surface. This layer is mostly made up of carbon dioxide and methane greenhouse gas emissions. Landfills are the most common source of methane, and cars and other gas-powered forms of travel are the most common (and widely known) sources of carbon dioxide pollution. 

Misconceptions About Climate Change

One of the most common misconceptions about climate change, also known as "global warming," is that higher temperatures (hotter weather) are the only effect of these shifts. W Status of the MORE Act and the CME Act Oct 18, 2022 hile it is true that the last couple of years, 2020 specifically, have been some of the hottest on record, with the Earth being measured at 1.1 degrees Celsius warmer than it was in the 1800s, hotter summers are not the only impact that climate change has. 

Other ill effects of global warming include flooding and more frequent severe weather incidents such as hurricanes, earthquakes, droughts, and melting polar ice.

Not many places in the world do not feel the effects of climate change, and more and more populations will begin to have their everyday lives impacted in noticeable ways as time goes on and climate change does not slow down. These changes can have lasting impressions on many aspects of life, not just the weather. Everything on our planet is connected, and when things like climate and weather are negatively shifting, the way we live our lives will inevitably change also. 

Impacts of Climate Change

Some examples of the impacts of climate change include:

-Fires in non-rural areas. These fires cause people to lose their homes and animals to be forced to relocate to areas unnatural to them.

-Droughts heavily impact food production in places where droughts are more frequent.

-The rising sea levels forever reshape landscapes such as Venice, Italy, and other seaside towns. It has even been explored whether climate change contributed to the devastating COVID-19 pandemic and what that means for infectious disease control moving forward. 

What does this mean for the future?

Climate change is caused and felt by humans all over the world, but some countries have contributed to it more than others. Many activities that have driven major shifts in the climate overall are widely argued to be necessary to sustain human life, such as certain food production and agriculture. However, there has been plentiful research over the years on ways to reduce climate impact and alternatives to how we have been doing things thus far. 

Legislation to Combat Climate Change

Many countries have enacted legislation designed to combat climate change, which can be done in several ways. For something of this magnitude, however, governments must work together, and in recent years, global leaders have done just that in efforts to make agreements that the world's biggest polluters can stick to. 

The Paris Agreement

For example, the United Nations (UN) hosted an international climate conference in 2015 that resulted in the historic Paris Agreement. As a legally binding treaty between 194 participants, it became effective November 4, 2016, and contains requirements for member countries to tangibly reduce their environmental impact while setting specific global temperature goals. It also establishes funding for developing countries that have been impacted by climate change but who may not have contributed to it in ways wealthier nations have. 

Other ways the UN has facilitated international cooperation to combat climate change are:

-the Sustainable Development Goals; and

-the UN Framework Convention on Climate Change

Both of these initiatives have the broad goals of reducing greenhouse gas emissions and funding and researching needed infrastructure to adjust to current and future climate changes.

What is being done through litigation?

As of May 2021, there were 1,841 lawsuits stemming from the negative effects of climate change worldwide. This number is up significantly from 2017, when there were only about 884 cases across a total of 24 countries. It is a huge increase overall, considering that there were hardly any cases going into the early 2000s. 

Recently, the vast majority of all cases were filed in the United States (an estimated 1,387), with around 450 filed in other countries and 13 filed before international or regional courts and tribunals (including the courts of the European Union). 

What is the core focus of these climate change lawsuits?

The central idea behind most of these filings is that a safe climate is connected to fundamental human rights. As such, civilians are putting pressure on political leaders and companies alike to be more transparent and take action that will produce concrete results in the fight against climate change. 

In the United States specifically, there are dozens of active lawsuits filed by both cities and states on behalf of the public. These lawsuits fall under a category called "fossil fuel disinformation" and allege that these large companies have intentionally misled the general population by downplaying their roles in climate change not to be held accountable. 

Now, lawsuits are demanding accountability for past actions and are seeking court orders for these companies to change their ways going into the future. These cases largely arise under tort and consumer protection laws.

United States Climate Litigation

2007 and 2015 were big years for climate litigation in the United States and elsewhere. Events such as Hurricane Katrina (2005) and the ruling in 2007 by the Supreme Court that greenhouse cases and carbon dioxide were air pollutants under the Clean Air Act and could be regulated by the Environmental Protection Agency (EPA) paved the way for a flood of lawsuits.

The Paris Agreement of 2015 caused a similar uptick in the years that followed. Since the landmark case of Urgenda Foundation v. State of the Netherlands (litigated in 2015 in the Netherlands and required the government to reduce their harmful emissions), over 1,000 cases have been filed. More recently, it is estimated that approximately 191 new claims have been filed worldwide between the beginning of May 2020 and the end of May 2021.

Who are the claimants?

The plaintiffs in these cases have been a variety-pack of claimants. Interestingly, the newest set of plaintiffs has been youth groups who are increasingly active in the fight towards a healthier future and have instituted human rights cases in recent years. 

One example is a federal case out of Germany where the country's greenhouse gas reduction goals outlined in their Federal Climate Protection Act (FCPA) were insufficient. Those standards would fail to meet Paris Agreement obligations and, therefore, violate human rights. The plaintiffs were mostly successful, and the court struck down portions of the FCPA as incompatible with fundamental rights for failing to set sufficient provisions for emissions cuts beyond 2030.

Attorney General Lawsuits in the United States

States' Attorneys General has filed many cases in the United States for various violations of consumer protection laws. Still, cases vary widely in what they claim, including causes of action ranging from nuisance to negligence and even securities fraud. 

One of the more strategic and innovative ways to bring climate change litigation forward comes from American courts: disinformation. These cases claim that companies, mostly "big oil," such as Exxon Mobile, Chevron, and BP, failed to disclose what they knew about their climate impact, whether intentionally or negligently. 

This could have been done for several reasons, but, ultimately, caused delays in governmental action to curb companies' effect on the climate, leading to further irreparable harm. Following suit, Vancouver, Canada's city council, recently approved a measure to fund a class action case against big oil companies in 2023. 

Although the cases themselves are somewhat novel, the case law and principles that serve as their bases are not; case law from tobacco and pharmaceutical cases protects consumers' entitlement to be warned of known potential hazards.

Colorado Environmental Lawsuits

A recent Colorado federal court ruled partially in favor of an environmental non-profit organization that filed suit on behalf of Colorado residents impacted by a local refinery. The ruling against the Colorado Department of Public Health and Environment through its Air Pollution Control Division ordered the agencies to address operating permit renewals for the refinery concerning implementing the Clean Air Act in Colorado "without further delay." 

Because the plaintiffs adequately proved that the refinery in question was one of the largest non-coal sources of greenhouse gas emissions in the state, they were subject to a provision in the Clean Air Act requiring “major sources” of air pollution to renew their operating permits no less frequently than every five years. 

They essentially called the state agencies out on dragging their feet, allowing the refinery to continue with its operations virtually unchecked. Even though the court, in that case, did not make a ruling on actual harm to air quality, it was a major win in the push for company accountability and governmental oversight using laws already in place.

Responsible Offshore Development Alliance v. U.S. Department of the Interior

In Responsible Offshore Development Alliance v. U.S. Department of the Interior, plaintiffs, another environmental non-profit organization, this time based out of Washington D.C., alleged against ten different defendants that the environmental impact statement for an offshore wind turbine project did not sufficiently evaluate the project's impacts on greenhouse gas emissions and climate change. 

The laws they cited to were numerous and had all been in place for quite some time, but the lawsuit created a question of jurisdiction and joinable parties as opposed to accountability and legal rights. 

Since its filing in January of 2022, the case has seen many jurisdictional motions and motions by parties to intervene in the litigation, evidence of the many years of contentious participation by fisheries professionals to “improv[e] the compatibility of new offshore development with [fishery] businesses” per the group's website.

By filing this lawsuit, they seek to ensure local and federal governments are taking caution and correctly assessing new projects' environmental impact, such as the one in question, and not allowing any circumvention of laws that are already in place.

The Future of Climate Change Litigation

Don't get things twisted, though; there are signs that companies are not willing to go down with a fight. One example of climate litigation in reverse is Colorado Automobile Dealers Association v. Colorado Department of Public Health & Environment. In this case, a non-profit representing new car and truck dealers filed a lawsuit challenging Colorado's adoption of California's low emissions standards for certain new vehicles. 

The case essentially accused Colorado Air Quality Control Commission of hastily enacting the same rules as California in violation of their own statutory prerequisites for motor vehicle emission control regulations by failing to complete emission control studies, along with failing to provide adequate time for review and comment of an economic impact analysis before enacting the regulations, among other claims. 

This means that companies will likewise be holding government agencies accountable to existing laws that outline steps for regulating the companies' conduct and emissions. The fact that laws are in place to protect consumers and keep our Earth clean doesn't change the fact that regulation comes with a price tag. 


Any questions on the status of climate change litigation in the United States or abroad? Contact our experienced environmental lawyers today so we can answer any of your questions.

About the Author

Ryan M. Newburn

Ryan Newburn is a business and legal expert trusted by Executive Teams and Boards of Directors to apply sound business principals to solve legal and financial problems. Ryan's practice focuses on mergers and acquisitions, financings, corporate formations and corporate governance in a broad range of industries including energy, distribution services, healthcare, medical devices, and technology. Leveraging his formal business training and years of practical experience, including as an executive at public and private companies, Ryan has advised hundreds of companies in dozens of industries of unique legal and financial issues.


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