Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation

Abstract

TABLE OF CONTENTS INTRODUCTION I. METHODOLOGY A. Coding of Parties in Climate Change Litigation B. Types of Climate Change Litigation 1. Suits against Governments 2. Suits against Private Parties C. General objective of the litigation II. FINDINGS A. Litigation by Type 1. Dominant Litigation Categories 2. Government Enforcement Actions 3. Missing Categories B. Climate Litigation over Time C. Non-U.S. Climate Litigation by Jurisdiction 1. Australia a. Challenges to Emissions Sources (B7) b. Reverse Environmental Impact Assessment (B9 and B10) c. False Green Advertising (E 19) d. Substantive Litigation 2. New Zealand a. Renewable Energy Cases (B11 and B12) b. Challenges to Emissions Sources (B7) c. Rights Associated with Climate Change (C 13) 3. Spain 4. United Kingdom a. Challenges to Emissions Sources (B7) b. Renewable Energy Cases (B11 and B12) c. Rights Associated with Climate Change (C13) 5. European Union a. EU ETS Litigation b. Challenges to Other Climate-Related Legislation D. Players E. Climate Change Objectives F. Success of Climate Litigation III. ASSESSING CLIMATE CHANGE JURISPRUDENCE A. Impact of the Courts on Climate Change Policy B. Judicial Deference to Agency Decision-Making C. Climate Change Jurisprudence CONCLUSIONS AND LOOKING AHEAD INTRODUCTION A recent study of 66 countries by GLOBE International found that most jurisdictions have taken considerable legislative steps to address climate change. (1) Together, the countries in the GLOBE study have enacted almost (500) climate laws. (2) According to GLOBE, the typical Annex I country has passed a new climate change law every 18 months, except for 2008-2010, in which there was notable acceleration. (3) All but four countries have passed a flagship climate change law establishing a comprehensive, unifying basis for climate change policy. (4) The United States is one of the four countries with no flagship climate change law. Despite mounting scientific evidence, climate change has proven to be particularly contentious in the United States, and national legislative action has not been forthcoming. This political environment has created fertile ground for climate change litigation in the United States. By the end of 2010, the U.S. courts resolved 144 climate change claims. (5) In 2012, Professor David Markell of Florida State University College of Law and J.B. Ruhl of Vanderbilt University Law School published an empirical assessment of climate change litigation in the United States. (6) Markell and Ruhl concluded that while courts have generally acknowledged that climate change is an important issue, courts have not developed a distinct climate change jurisprudence. (7) In addition, while courts have tried to urge Congress and administrative agencies to act, there is little evidence to suggest that litigation has had much impact on climate change policy, with the exception of Massachusetts v. EPA. (8) Using the Markell and Ruhl study as a model, this paper investigates the role courts have played in the development of climate change policy outside the United States. Part I outlines the methodology employed to conduct a comprehensive analysis of non-U.S. climate change litigation. Part II discusses what types of claims have arisen; how climate litigation varies by jurisdiction; who the key players are; and their primary goals. Part III draws upon these findings to assess how courts have dealt with climate change and the role litigation is playing in the formation of climate change policy. I. METHODOLOGY This study aimed to include all reported climate change litigation decisions from all jurisdictions outside of the U. …