What Role Can Climate Change Play in the Courtroom? – State of the Planet

Columbia’s Sabin Center for Climate Change Law focuses on four program areas: cross-cutting issues and initiatives, energy law, environmental and land use law, and international and foreign law. As the number of legal efforts involving each of these categories continues to grow, the center has positioned itself as a resource hub for tracking and analyzing global climate change litigation.

In a lecture at the Columbia Climate School Research Seminar Series, Michael Burger, executive director of the Sabin Center, discussed the direction climate change cases have taken in the courtroom in recent years—and what these lawsuits may mean for current and future regulation, policy and response.

Burger began his presentation with an overview of significant developments in climate litigation, including decisions by the Supreme Court that have placed constraints on federal agencies responding to complex crises, such as climate change.

For the first time, he said, in the sixth Assessment Report from the Intergovernmental Panel on Climate Change (IPCC), the authors concluded with medium confidence that “climate litigation is an influential factor in determining the scope of national climate ambition and corporate climate ambition.” This declaration raises the open question: “Is climate litigation really forcing governments and corporate actors to ramp up their ambition and action to address the climate crisis?” Burger said.

Another unavoidable question, he continued, is the relationship between our recent elections and what is happening and will happen in the courts, as well as what has happened in the last few years. All of these events will directly affect what the U.S. will be able to accomplish on climate in the years ahead, Burger said.

“I think everybody in this room knows, as a global society, we are not on track to meet the targets, goals and guardrails of the Paris Agreement,” he told the audience; there is currently a significant emissions gap, policy gap and production gap between where we are and where we need to be.

Every two years, United Nations Environment Programme (UNEP) issues a production gap report that shows the difference between the production of fossil fuels at the national level and the rates and amounts of production necessary to achieve the Paris targets, Burger said, “and we are way off track.”

“When you have this kind of massive failure at the government level and at the corporate level, to address a crisis of any scale, people turn to the courts—because when systems fail, people will go to the courts to seek justice, to seek redress and to seek change,” he said. This phenomenon is playing out with an increase in the number of climate-related lawsuits, especially in the U.S.

The Sabin Center maintains two distinct databases of climate cases worldwide—one in the U.S. and one in other countries globally, where “climate change is treated as a factual or legal issue.” But it’s important to note, he said, that these databases may not include cases that are relevant for climate change but do not meet all the criteria for what the Sabin Center considers a “true” climate lawsuit. One example of this might be a case that has a direct impact on climate change but does not explicitly raise climate issues. (Read more about Sabin’s policy on climate-litigation inclusion in its database here.)

The Sabin Center has written several reports for UNEP surveying global climate litigation in recent years; as well as a year-in-review 2023 climate change litigation report and a report on global climate litigation in the Global South in 2023, he said, with another retrospective assessment for 2024 in the works.

Presently, as of October 2024, the Sabin Center has tracked nearly 1,850 cases filed in the U.S. with around 950 cases in the global databases.

And what trends do we find in these climate litigation cases? Burger asked. First: cases using “climate rights” or invoking the idea that individuals, communities and vulnerable groups have the rights to climate protection. Second: the use of the courts to enforce the Paris agreement commitments as a standard that national governments and private corporations have to maintain. Third: a range of cases, including environmental review cases, that seek to challenge fossil fuel development and infrastructure and to stop deforestation and the destruction of other carbon sinks. Fourth: litigation that seeks corporate liability and responsibility for companies’ contributions to climate change. The fifth and more recent trend, Burger said, are climate washing or greenwashing cases around misleading climate disclosures. Then, finally, are the adaptation cases around failures to adapt to the impacts of climate change.

Burger then outlined several recent and pivotal cases in the U.S. that have resulted in Supreme Court decisions that constrain the abilities of the EPA and federal agencies from taking action on climate change, environmental problems, public health and a wide range of public goods, he said, such as West Virginia vs. EPA, which announced the “major questions doctrine” and restricted the agency’s ability to regulate greenhouse gas emissions in 2022; the 2024 Loper Bright Enterprises vs. Raimondo case that overturned the 1984 “Chevron deference,” which had deferred to agencies to interpret ambiguous federal statutes rather than the courts; and the 2024 case Ohio vs. EPA, which stopped the EPA from enforcing its “Good Neighbor” plan that required states to reduce pollution contributing to emissions levels in states located downwind of them, thus preventing their neighbors from maintaining mandated air quality standards. All of these decisions limit the autonomy of federal agencies and their ability to impose regulations.

The other open question in this conversation around climate and the courts is that of corporate accountability. “These are cases that arise from a defendant’s contribution to climate change or a plaintiff’s attempt to limit future greenhouse gas emissions,” Burger explained, including lawsuits “alleging that a company’s activities or products contribute to climate change, and therefore they should be held liable for damages, or they should be forced to restrict their activities or products moving forward.”

Such cases have also been brought against the financial actors providing monetary support to companies for their contributions to the climate crisis indirectly, Burger added, and then there are adaptation claims, which arise from a defendant’s failure to plan for or adapt to the physical, societal or legal impacts of climate change. For example, suits against operators of infrastructure after climate-driven disasters, like we saw with PG&E who filed for bankruptcy in 2019 after facing $30 billion in potential liability following California wildfires, he said.

How will climate litigation transform in coming years, in light of these developments and with a new presidential administration? And “how does this all come back to the IPCC’s determination that climate litigation is, with medium confidence, an influential factor on national and corporate ambition?” I think it may be too soon to tell, Burger said.