Diego Lopez
Edited by Marissa Ambat, Sahith Mochalra, Jia Lin, and Roohie Sheikh
On November 2, 2021, New York voted to approve an amendment to the New York Constitution’s Bill of Rights guaranteeing each person the right “to clean air and water, and a healthful environment” [1]. The addition of New York’s Environmental Rights Amendment, also referred to as the “Green Amendment,” is the most recent in a series of environmental rights provisions added to state constitutions across the United States. Aside from New York, the states of Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island have also introduced environmental rights in their state constitutions [2]. The inclusion of Green Amendments in state constitutions has invigorated the efforts of climate advocates to drive regulatory change and mitigate the effects of climate change. These efforts, materializing in the form of lawsuits, have achieved varying degrees of success. An examination of climate lawsuits and Green Amendments reveals that human rights based legal approaches to environmental sustainability face serious challenges; therefore, I argue that while human rights-centered climate lawsuits have gained traction, the legal obstacles such lawsuits face tends to hinder their effectiveness as a strategy for climate advocates seeking policy change.
Human-rights-centered climate lawsuits have resulted in significant legal victories. Two landmark cases, Held v. State of Montana (2021) and Robinson Township v. Commonwealth (2013) invoked the environmental rights amendments included in their respective state’s constitutions to affect changes in the laws and policies of their states. In Held, the Montana First Judicial District court ruled that the state’s fossil fuel-dependent energy policies violated plaintiffs’ “inalienable rights” under the Montana State Constitution, specifically their right to a “clean and healthful environment” [3]. Similarly, the Pennsylvania Supreme Court in Robinson Township ruled that a state statute preventing municipalities from prohibiting hydraulic fracking was invalid under the state constitution’s Environmental Rights Amendment [4]. In the same case, the court ruled that the amendment mandated all state revenues from oil and gas leases be allocated to conserve public natural resources for the benefit of future generations.
The viability of human-rights-centered climate lawsuits as a strategy for advancing climate policy generally hinges on three important questions: whether plaintiffs can effectively argue that defendants–including governments and fossil fuel companies–are liable for climate change; whether any enumerated or non-enumerated environmental rights exists that plaintiffs can invoke; and whether plaintiffs meet the requirements for proper standing to sue. In legal terms, standing is defined as “the capacity of a party to bring a lawsuit in court” [5.] In order to prove standing, a party “must demonstrate a sufficient connection to and harm from the law or action being challenged” [6].
Because parties in a lawsuit need to prove standing, the challenge of defining injuries suffered due to climate change in human-rights-based climate litigation has hindered its own effectiveness/success. In the 2023 Global Climate Litigation Report published by the United Nations Environment Programme, the authors noted that plaintiffs pursuing human-rights-based climate litigation “will likely have to demonstrate both that their injuries were caused by climate change and that the defendant substantially contributed to climate change” [7]. However, they also note, “Since 2020, few courts have yet to reach the merits of these types of claims, despite the growing body of science illustrating the connections ” [8]. Essentially, there are two parts to proving a defendant's liability for the injuries of the plaintiff. The first part is establishing the causal relationship between climate change and human-generated greenhouse gas emissions. The study of this relationship is known as “climate attribution” [9]. Effectively communicating the quantitative findings of attribution science to a judge or jury who may not be receptive to scientific evidence, presents a significant challenge for potential climate lawsuits. The second, and more difficult, part is proving that the particular defendants in the case–whether governments or companies–are responsible for climate change. Proving this causal relationship, known as source attribution, relies on evidence such as corporate or government documents, securities findings, mining leases, and other documentation to estimate the carbon emissions attributable to specific parties [10]. Proving tight causality between defendants in a climate lawsuit and particular damages suffered by the plaintiff is one, but not the only, requirement for proper standing in federal courts.
Questions of standing–specifically the court’s role in climate-related cases–in climate issues have also posed challenges to climate litigation. For instance,in the landmark climate litigation case Juliana v. United States (2015), the Court of Appeals for the Ninth Circuit ruled that the plaintiffs’ lack of standing under Article III of the Constitution was grounds for dismissal of the case. Article III, which defines proper legal standing to sue, the federal court mandates that plaintiffs demonstrate “(1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision” [11]. The court in Juliana found that plaintiffs met the first two prongs of Article III but not the third. In the court’s view, they lacked the power to address the plaintiff's injuries, regardless of their legitimacy. Rather, the case for the actions sought by plaintiffs “must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box” [12]. The standing rules for federal courts, as exemplified in Juliana, do not directly apply to actions brought in state courts [13]. Many states’ requirements for proper standing are easier to meet for climate lawsuits than those of the federal courts. This is partly why climate cases seldom proceed beyond district courts before entering the federal court system.
Assuming plaintiffs have proper standing in the district courts, the viability of their case still relies on their ability to prove an environmental right to a clean and healthy environment. There is no enumerated right to a clean environment in the U.S. Constitution, and recent efforts to identify a non-enumerated or implied right have been ineffective [14]. Currently, only seven out of the fifty states in the United States have a green amendment asserting an enumerated environmental right in their state constitutions [15].
The scope and impact of human-rights-centered litigation to address the climate crisis are thereby undermined by the absence of green amendments, particularly those most responsible for CO2 emissions. Only two of the top ten U.S. states with the highest total annual CO2 emissions (in millions of metric tons) have a green amendment in their constitution: New York and Pennsylvania [16]. Together the total annual CO2 emissions from these ten top states–Texas, California, Florida, Louisiana, Pennsylvania, Ohio, Illinois, Indiana, New York, and Michigan–constitute approximately 53.22 percent of total annual CO2 emissions in the United States [17].
Time is of the essence. The longer the world delays in adequately addressing climate change, the more it warms, and the more likely it is to experience increasingly intense climate effects. The protracted political struggle to establish and articulate environmental rights at the state or federal level is unfortunately not a luxury that climate advocates can afford, given the urgent need for necessary reforms to combat the climate crisis [18]. The significant challenges associated with human-rights-based litigation in the United States suggest that climate advocates would be better served by exploring alternative legal pathways to accomplishing their policy goals.
As the field of climate change law evolves, various alternative legal approaches have been tested in courts across the United States. One particular approach does not rely on fundamental environmental rights. These types of claims vary and include nuisance, negligence, trespass, strict liability, and claims under state and local consumer protection laws and unfair trade practices statutes. Since 2021, nearly two dozen states and cities in the United States have sued large fossil fuel companies over damages related to climate change. Many of these lawsuits have been successful in holding large companies accountable for their fossil fuel emissions while also proving difficult for these companies to dismiss on issues of standing as opposed to human-rights centered litigation.
In City & County of Honolulu v. Sunoco LP (2023), Honolulu alleged that companies including Sunoco, Exxon, Shell, and Chevron had known for over fifty years that unrestricted use of their fossil fuel products would produce greenhouse gasses leading global warming The lawsuit included claims of public nuisance, private nuisance, strict failure to warn, negligent failure to warn and trespass against the defendants. The Hawaii Supreme Court, along with trial and appellate courts, rejected the defendants’ arguments that the lawsuit sought to regulate emissions or interstate commerce, and therefore should be tried in federal court. Ultimately, the Hawaii Supreme Court approved the case for trial in state courts.
The jurisdictional dispute in Sunoco LP exemplifies a broader conflict and its importance to climate litigation. Climate advocates have a vested interest in keeping climate litigation cases at a local level, as they have seen a greater success in challenging the policies of fossil fuel companies there. This is largely due to the aforementioned difficulties associated with litigating climate cases in federal courts, including issues of plaintiffs failing to meet the requirements of proper standing, and challenges in arguing rights-based climate lawsuits. Furthermore, an additional benefit is that state courts provide more venues for litigation, increasing opportunities for climate advocates to file lawsuits and enhancing the likelihood of successful cases.
While human-rights-centered lawsuits have significant weaknesses compared to tort cases, they also offer significant strengths that make them an invaluable tool in climate advocates’ expanding repertoire of viable legal strategies. First among these strengths is that, if climate plaintiffs can prove that a certain action, or inaction, is mandated by an inalienable constitutional right–such as the right to a clean and healthful environment–the effort to overturn that precedent is subject to the most stringent legal threshold: strict scrutiny. As a result, any climate-related policies mandated by a constitutional right, whether state or federal, receive the strongest legal protection afforded by American courts.
As climate advocates experiment with various types of lawsuits and legal strategies, they will gradually gain insights into which approaches are most effective and how to improve upon past strategies. Neither human rights-centered claims nor traditional tort claims provide the best path forward for climate advocates. To achieve their climate policy goals, climate advocates must adopt a comprehensive legal strategy that incorporates a wide range of approaches, while identifying the most suitable strategy for specific circumstances.
[1] Michael B. Gerrard & Edward McTiernan, New York's Green Amendment: The First Decisions, N.Y.L.J. (Mar. 7, 2023), https://www.law.com/newyorklawjournal/2023/03/07/new-yorks-green-amendment-the-first-decisions/.
[2] Romany Webb, Environmental Rights in State Constitutions, Sabin Center for Climate Change Law (Aug. 31, 2021), https://blogs.law.columbia.edu/climatechange/2021/08/31/environmental-rights-in-state-constitutions/.
[3] See [2] Webb
[4] See [2] Webb
[5] Legal Information Institute. (n.d.). Standing. Legal Information Institute. https://www.law.cornell.edu/wex/standing
[6] See [5] Legal Information Institute
[7] U. N. Environment, Global Climate Litigation Report: 2023 Status Review, UNEP - UN Environment Programme (Jul. 27, 2023), http://www.unep.org/resources/report/global-climate-litigation-report-2023-status-review.
[8] See [7] U.N. Environment
[9] Yale Experts Explain Climate Lawsuits, Yale Sustainability (Aug. 16, 2023), https://sustainability.yale.edu/explainers/yale-experts-explain-climate-lawsuits.
[10] See [9] Yale Experts Explain Climate Lawsuits
[11]“Juliana v. United States - 947 F.3d 1159 (9th Cir. 2020),” Lexis Nexis, https://www.lexisnexis.com/community/casebrief/p/casebrief-juliana-v-united-states.
[12] Robinson Meyer, A Climate-Lawsuit Dissent That Changed My Mind, The Atlantic (Jan. 22, 2020), https://www.theatlantic.com/science/archive/2020/01/read-fiery-dissent-childrens-climate-case/605296/.
[13] Standing Requirement: Overview, LII / Legal Information Institute, https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/standing-requirement-overview.
[14] See [2] Webb
[15] See [2] Webb
[16] Joe Robertson, U.S. States Ranked by Carbon Dioxide Emissions per Capita, Solar Energy Insights, https://solarpower.guide/solar-energy-insights/states-ranked-carbon-dioxide-emissions.
[17] See [16] Robertson
[18] 2024 doomsday clock statement: Climate change. Bulletin of the Atomic Scientists. (2024, January 23). https://thebulletin.org/doomsday-clock/current-time/climate-change/#:~:text=Looking%20ahead%2C%20by%20some%20estimates,year%20between%202023%20and%202027.
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