Does the Planet Stand a Better Chance in Court?
A Tide of Litigation is Coming for Climate Change
Seeing as I’m a lawyer, and many human rights activists are too, it would be remiss for me to leave the topic of climate change without talking about law as part of the fix. This might be environmental law, treaties, national laws, or judge-made law, that is verdicts, rules of precedent, and interpretation. I’ve already discussed how difficult and how long it will take to negotiate new treaties, much less change human rights law to take account of extraterritorial obligations and shared accountability for harming people outside of national borders. National and local legislation is more promising but still difficult to achieve, and executive action, even when powerful, can be quickly reversed in industry’s favor when administrations change. Judge-made law, in the sense of precedent and interpretive analysis, can be around for quite a while.
One thing that human rights activists tend to be good at is suing. Litigation is a great way to make change—both to vindicate and remedy victims and to create precedents and principles to deter future powerful malefactors. Litigation requires a great deal less persuasion than, say, legislation, much less international treaty-making. You only need to convince a few judges, or maybe a jury. And the inequality of arms isn’t quite as bad as in the political arena—impact litigation tends to attract talented lawyers, even if corporations and the state have far more resources.
But first, you need a law. And sometimes our first instinct, when vindicating human rights, is to look for a criminal law. Criminal law, as an extreme condemnation, seems to fit extreme violations of life and liberty. It exerts a powerful social stigma, swiftly changing how the actions of the powerful are perceived. Think of the symbolic force of Donald Trump’s arraignment—we could debate the strength of the legal case until the cows come home, but no one thinks being arraigned for paying off a porn star is a good look for any politician.
Human rights activists love to craft a good crime--I can vouch for this, as someone who participated in the negotiations for the International Criminal Court (ICC). Proposals for an international crime of mass damage and destruction to the environment or an ecosystem have been circulating since the Vietnam War and the use of napalm as a defoliant. A Yale biology professor, Arthur W. Galston, coined the term “ecocide,” a direct play on the term “genocide,” and it quickly was taken up by lawyers and diplomats, most recently as an effort to include it as an amendment to the Rome Statute of the ICC in 2021. Although several states and the European Parliament support expanding the ICC’s jurisdiction this way, there are limits on how useful this would be. Its statute does not cover the liability of corporations, and some of the most significant global polluters do not accept its jurisdiction—including the US, Russia, China, and India. If the ICC push fails, sympathetic nations could negotiate a separate treaty on ecocide, applying it to corporations, but the likelihood of gaining the acceptance of major polluting nations seems distant.
While ecocide as a crime has gained little traction in the U.S., it has entered the legal systems of quite a few other nations, particularly those of the former Soviet Union—including Ukraine, which has begun investigating Russia’s widespread environmental depredations during the war. Belgium is also considering incorporating the crime into its laws, and more states may follow if the ICC push gains some momentum (especially as ICC jurisdiction over a case depends on a member state being unable or unwilling to prosecute). Efforts to draft model definitions of the crime could considerably aid national incorporation and global convergence.
Nonetheless, as dramatic and stigmatizing as ecocide sounds, criminal prosecutions are likely to be rare, and rarely successful, for many reasons. Chief among them is proving some degree of actual intent on the part of the defendant. Then there’s gathering persuasive evidence of causation, often from other countries, not to mention the heavy burden of proof—beyond a reasonable doubt. So, while ecocide has symbolic weight and some deterrent value, it is probably not at the top of the list as far as legal solutions go. Far more actions have been brought to impose civil liability on corporations or to seek injunctions to compel government action.
Tort law, which determines liability for harm exclusively and proximately caused by the defendant to the plaintiff, seemed a poor fit for the global scourge of climate change. Indeed, in 2011 Yale Law professor Douglas Kysar wrote:
[D]iffuse and disparate in origin, lagged and latticed in effect, anthropogenic greenhouse gas emissions represent the paradigmatic anti-tort, a collective action problem so pervasive and so complicated as to render at once both all of us and none of us responsible.[1]
And so far, very few tort cases have prevailed, though they continue to be brought in various jurisdictions. Plaintiffs often do not prove causation with sufficient particularity, using the latest scientific methods for showing weather events are due to climate change, or fail to establish a duty of care on the part of private defendants.
Fortunately, other legal theories are available and producing results, particularly in Europe. One type is suing the government to enforce its climate commitments or to require it to meet its duty to provide adaptation and mitigation measures, as in the landmark Urgenda case. Another successful strategy has been suing corporations on false or misleading statements or “greenwashing” on consumer protection grounds. In the U.S., municipalities are suing corporations to recoup the costs of adaptation measures in state courts. The right to a healthy environment and other human rights have provided a basis for legal redress in some cases. And young people have stood as plaintiffs in many cases, arguing that the government’s failure to restrict emissions harms their future and rights.
One thing is clear: climate litigation is increasing exponentially, and steadily chipping away at the impunity that major polluters have enjoyed. And even when it is not successful, it is causing an attitude shift in society, politics, and corporate boardrooms. An idea that seemed far-fetched only a few years ago is leveraging the public and the courts against recalcitrant governments and industries. In the process, these cases are gradually bending the law to be more responsive to the rights of future generations—an approach the human rights movement should embrace and pursue.
[1] Kysar, Douglas A. “What Climate change Can Do About Tort Law,” Environmental Law 41, no. 1 (2011): 1–71. http://www.jstor.org/stable/43267360.
