Tired and emaciated, a starving polar bear recently became the face of the climate crisis. This image is just one out of many heart-wrenching images that drew widespread attention to the severity of global warming. Even as the signs of global warming continue to intensify, legislation protecting the environment faces agonizingly slow decision making, leaving environmentalists in a seemingly powerless deadlock. However, through judicial actions and lawsuits, people can regain power and enforce or even change the interpretation of certain policies. Private party, state, and next generation lawsuits have empowered people to speak up for environmental protection once again.
Climate change litigations have not always been successful channels for change. Throughout the 1970s and 80s, environmental concerns were mainly addressed through the legislative branch. In the 1990s, the courts became even more conservative, making the cases’ “standings” an issue in climate change cases. “Standing” refers to a party’s ability to define the other party’s responsibility and to show how the other party failed to fulfill their responsibility, eventually causing injury or damage. Standing was difficult to define because climate change cases could rarely find a direct cause with absolute certainty. They had to establish the other party’s environmental responsibility and link them to the environmental harm. It was not until later that courts broadened the scope and allowed more speculative causation, in major climate change cases like Massachusetts v. Environmental Protection Agency (EPA).
Massachusetts v. EPA, established how much regulatory power belonged to governmental agencies that were involved in public health. Since the Clean Air Act (CAA) requires the EPA to regulate dangerous gas emissions, environmental organizations petitioned against the EPA because of the agency’s failure to regulate greenhouse gases (GHGs) emitted from motor vehicles. Petitioners contended that greenhouse gases could be classified as dangerous, as they cause climate change, which adversely affects human health (Justia 2011). The EPA responded by denying the petition for several reasons. It claimed that it lacked the authority under the CAA to regulate carbon dioxide and other GHGs for climate change purposes, because greenhouse gases were not classified as “air pollutants.” Even if it had the authority, the EPA had already exercised the discretion as an agency not to regulate, because regulation would conflict with the Bush administration’s standard of voluntary carbon emission reduction (Oyez 2011).
Finally, in 2007, the Supreme Court ruled that the petitioners had standing to sue, especially states with long or low coasts, which would be threatened by the rising sea levels that global warming might cause. They also ruled that the CAA clearly provides the EPA with the authority to regulate GHGs emissions, but if the agency chooses not to regulate, the agency would have to use the Hard-Look Doctrine to explain and support its decision (Sabin Center for Climate Change 2008). As a result, the EPA needs to be able to justify its choices, forcing it to make better, deliberate choices. The Court also suggested that the EPA either find out if carbon dioxide causes or contributes to harmful air pollution or offer a reasonable explanation as to why it cannot determine the answer to that question. The Supreme Court’s decision surprised many and represented a change in the Court’s opinion.
Another type of climate change litigation is relatively new and groundbreaking: next generation lawsuits. Next generation lawsuit plaintiffs take a different approach and argue that the government has not done everything in its power to protect the next generation of Americans from the adverse effects of global warming. The first of its kind is Juliana et al v. United States, an ongoing lawsuit on behalf of twenty-one youths, from the ages of nine to twenty-one, over the federal government’s alleged failure to rein in fossil fuel development and address climate change. Brought together through organizations like Our Children’s Trust and Earth Guardians when a U.S. court recognized the right to a safe climate as Constitutionally protected, this group of children and teenagers decided to challenge the government’s idleness towards global warming. Together, they presented a string of claims indicating the severity of global warming, including rising sea levels and CO2 emissions. The basis of their case, the Public Trust Doctrine, highlights the government’s role to responsibly allocate and use natural resources, like land, water, or fisheries so that future generations can also enjoy them. This lawsuit argues that the doctrine’s extent includes the atmosphere and that federal policy changes in climate efforts and in fossil fuel development programs are desperately needed.
The Juliana et al v. United States case currently has a federal trial date this coming October. The world will be watching, as this case’s decision holds major implications and could serve as a precedent for similar cases in the future—perhaps even in other countries. Based on the Supreme Court’s current discourse towards more environmentally aware decisions, the outcome seems optimistic. With the spirit of these environmental organizations and environmentalists of the next generation taking action at the legal front, hopefully it will compel others to do the same and address the urgent climate crisis that has been demanding more than our attention.
“Massachusetts v. EPA, 549 U.S. 497 (2007)”
“Massachusetts v. Environmental Protection Agency”