By William S. Becker
The rising number of Americans who want the government to do something about climate change should be thankful that there are three branches of government in the United States. That’s because the Legislative Branch has not done anything since October 1992, and the hard work done by the previous Executive Branch is being trashed by Donald Trump.
So, climate action groups have turned to the courts, not only in the U.S. but worldwide. In the first 2.5 years of his presidency, Donald Trump and his team have tried to undermine or reverse federal climate policies 94 times. Analyzing the first two years of Trump’s tenure, the Sabin Center for Climate Change Law at Columbia University reviewed 159 legal cases involving federal policies related to climate change. Cases filed by the good guys outnumbered the bad guys 4 to 1.
The Trump Administration’s batting average is not good. Not once during 2017 and 2018 have the courts ruled in favor of the Administration. Thanks largely to the legal eagles at organizations pressing for climate action, the cases are building significant precedents on the Executive Branch’s authority to destabilize existing rules or to act without following the required procedures.
As we know, Trump is fighting his war against climate action on several fronts. He continues to suppress climate studies in his own Administration. His Cabinet secretaries are at the beck and call of corporations. Most recently, the Department of Energy has eased energy efficiency standards on dishwashers and gas furnaces in compliance with petitions it received from the conservative Competitive Enterprise Institute and natural gas suppliers. Energy Secretary Rick Perry claimed that backing off on energy efficiency standards is a “common-sense approach”.
The Sabin Center reports, “The Administration has delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or reversed energy efficiency standards; undermined consideration of climate change in environmental review and other decision-making; and hindered adaptation to the impacts of climate change.”
According to another organization — the Centre for Climate Change Economics and Policy in the UK – the number of climate-related lawsuits in the United States is considerably larger than the 159 cases studied by the Sabin Center. The UK Centre identified 1,023 cases just in the United States between May 2018 and May 2019, three-quarters of the lawsuits it found worldwide.
While there has not been an assessment of the lawsuits’ impacts, the Centre found that:
- Climate litigation is increasing around the world, including in low- and middle-income countries. The objectives are to force more ambitious government action and to seek compensation from major polluters;
- Human rights are increasingly resonant with judges and advancements in climate science are making it easier to establish a causal link between emissions and harms;
- Claims against investment funds and companies for ignoring or failing to disclose climate risks may encourage them to give greater consideration to those risks.
As we have seen, climate action has been on a teeter-totter in America because of changes in national leadership. President Bill Clinton and especially President Obama launched a variety of rules and programs to limit carbon pollution. President George W. Bush and now Trump trashed what their predecessors did.
Congress has been a negative force, too. The Clinton Administration signed the first international climate treaty, the Kyoto Accord, in 1997 but the Senate made clear that it would not vote to ratify it. Bush officially removed the U.S. from the treaty in 2001. Obama signed the Paris climate accord in 2015, but Trump plans to withdraw the U.S. in 2020 if he’s still president.
As I and many others have written, the most significant court case right now is the lawsuit filed four years ago by 21 young Americans who want to force the Trump Administration to stop supporting fossil fuel production and to create a viable plan for emission reductions. Federal judges are taking their time in deciding whether the young people can bring the Administration to court.
In short, it’s a great time to be an environmental attorney. The question is, what impact will all this litigation have in the U.S.? That is the topic of Part 2.