Climate Change Litigation Strategy: Swing For the Fences or Hit Singles?

Those seeking to address climate change through litigation have taken two different paths.  Some cases, probably best represented by Juliana v. United States, have plaintiffs who are swinging for the fences.  These are stereotypical examples of impact litigation; the plaintiffs are hoping to change the world.  Other cases involve plaintiffs who are just hoping – for now, at least – to hit a few singles.  Representative examples include cases brought by the Conservation Law Foundation against terminals in Massachusetts and Rhode Island, where CLF claims that the defendants are violating various federal laws by their failure to prepare for the impact of climate change.

Two recent stories reaffirmed my believe that, at least for the near term, the singles hitters are likely to do better than the home run hitters.  First, the home run hitters.  Last week, Judge Michael McShane dismissed a case brought by the Animal Legal Defense Fund in which the plaintiffs asked the Court to address the government’s failure to address climate change by creating a “right to wilderness.”  The Court did not hesitate to conclude that the relief sought was beyond the power of a humble District Judge.  Judge McShane found that the plaintiffs did not have standing, there was no justiciable case or controversy, and that the plaintiffs had not stated a claim for relief.  As the Court noted on the standing issue:

Plaintiffs’ allegations are, by their very nature, generalized grievances. They allege harm resulting from the government’s actions and inaction regarding climate change and seek broad declaratory and injunctive relief that would no more directly or tangibly benefit them than the public at large. Even if this Court were to recognize a fundamental “right to wilderness,” it would necessarily be a right held in common by all citizens, and the effects of climate change would be an abstract injury that all citizens share.

Next up, the singles hitters.  In a very helpful summary published yesterday, ClimateWire (subscription required) laid out the types of claims that are being brought now and that could be brought in increasing numbers in the fairly near future, particularly as attribution science becomes more mature.  The types of cases range from claims arising out of western wildfires, to shareholder lawsuits for insufficient disclosure of climate risks, to the types of terminal claims brought by CLF.

I think that there’s a pretty good chance that plaintiffs start prevailing in some of these cases fairly soon.  If that starts happening, we’re going to see a cascade and then a tsunami of such cases.  And if that starts happening, the home run cases may not matter so much.

The question then will be what happens when the targets of such litigation run to Congress and beg for a carbon tax combined with some kind of relief from private litigation.

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