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Will U.S. Courts Begin Weighing In on Climate Change?

By Michael DeRienzo, Esq. | Last updated on

There is an old saying that everybody hates a lawyer until they need one. Sometimes, even lawyers hate being lawyers.

Regardless of your feelings toward lawyers, there is one thing that is clear — lawyers, and their lawsuits, can make an impact. It's no coincidence that the infamous 1857 Dred Scott case came right before the Civil War or that Brown v. Board of Education came at the start of the Civil Rights Movement.

The desire for impactful change might be the driving force behind a new movement of lawsuits aimed to tackle a rather different problem: climate change. According to recent studies, lawsuits related to climate change have more than doubled in the past five years. Instead of waiting for Congress and other legislatures to solve the climate change crisis, these plaintiffs are forcing the issues to be litigated now in hopes that the real change can come sooner.

An Overview of Climate Change

Unfortunately, the evidence suggests we're running out of time to prevent a global average temperature increase. One cause of global warming is the increase in greenhouse gasses that get released into the atmosphere and are trapped, causing the Earth's temperature to increase. These greenhouse gasses, in turn, are mostly caused by human activities, including the burning of fossil fuels.

Despite more widespread knowledge of the issue, 2022 was the sixth warmest year ever recorded, and 2023 does not look to be any better, with multiple weeks this summer recording as the hottest ever on record.

If this trend continues, according to the U.N. Intergovernmental Panel on Climate Change (IPCC), a 2-degree Celsius warming will occur by 2032 and cause meteorological catastrophes. With everything going on in the world over the past few years  (unprecedented wildfires in Maui and Canada and snow in Texas), the plaintiffs in these lawsuits clearly believe in the need to act fast.

In an effort to slow the progression of global warming, governments around the world have enacted various laws designed to decrease human activities that contribute to climate change.

Arguably, lawsuits have created more change than some other advocacy efforts. Since many big corporations contribute to the global warming crisis, plaintiffs have been trying to hold them accountable. As a result, in some cases, courts around the world have ordered such companies to change their actions to comply with certain standards.

For example, in 2021, a Dutch court ordered Royal Dutch Shell to cut its greenhouse gas emissions 45% by 2030. Notably, Shell had already announced a plan to decrease by 20% in that time frame, but the court found that this was not enough.

Earlier this year, a group of older adult Swiss women brought a case in front of the European Court of Human Rights against the government of Switzerland for allegedly violating their human rights. According to the plaintiffs, the government had failed to act appropriately in response to rising temperatures, putting the women at risk of dying of heat waves.

U.S. Courts Reluctant to Weigh In — Until Now

Here in the United States, litigants have typically had worse luck in lawsuits. However, a group of young Montana citizens recently found success in Montana district court. Judge Kathy Seely found that by allowing certain projects that contribute to greenhouse gas emissions to continue, the government of Montana had violated the rights of children living in the state under the state constitution.

In her ruling, Judge Seely wrote that greenhouse gas emissions from the state's production of coal, oil, and gas were a substantial factor in climate change, which had a harmful effect on Montana's children. The government of Montana plans on appealing the matter, claiming that the legislature, not the courts, should be responsible for setting climate policy.

This decision could set a new trend in climate change lawsuits, although that is far from certain. Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, commented that this decision could be the inspiration needed for other plaintiffs to file suit against their own states to combat global warming. If the Earth gets more wins like this, maybe it can go back to hating lawyers like everyone else.

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