“Litigation is often a lengthy, costly and risky process, and in certain contexts it can result in broader political backlash, which defeats the original aim of the litigants,” concludes a new report on “Global trends in climate change litigation,” published by the Grantham Research Institute on Climate Change and the Environment in partnership with the Sabin Center for Climate Change Law at Columbia University and with funding from the Grantham Foundation for the Protection of the Environment.
It’s a surprising conclusion for a report funded by the Grantham Foundation, which helped fund the 2012 La Jolla conference where the strategy to bring litigation against energy companies was initially concretized. Yet it’s a conclusion supported by the report’s look at whether climate change litigation provides “favorable” outcomes, meaning results in “increased climate change action.”
In its summary, the report maintains that “Climate change litigation is increasingly viewed as a tool to influence policy outcomes and corporate behavior. Strategic cases are designed to press national governments to be more ambitious on climate or to enforce existing legislation.” Thus, climate change litigation is being used as a tool for regulation, and although the report does focus on this litigation around the world, the United States represents the largest portion of climate change litigation cases, accounting for 1,023 of the 1,328 cases that the authors identified to May 2019.
The report splits cases in the United States into two waves. The first accounts for lawsuits filed from the early 2000s until 2015, mostly relying on “public nuisance” claims. As the report admits, “These cases were largely unsuccessful.” The first cases filed in the second wave—starting in 2015—are currently appealing dismissals.
In other words, although the report maintains that this second wave of cases “benefits from the growth and consolidating of climate science in the last decade, alongside better localized data on climate changes,” they haven’t gained much traction yet either.
One area with which the Grantham Research Institute should be familiar is the involvement of non-governmental organizations, mainly non-profits, in climate change litigation. The Institute has received its funding from the Grantham Foundation. As the report notes, NGOs have played an increased role in these lawsuits:
While US data on plaintiff-type is only complete up to 2016, it shows a key role for NGOs in climate protection before the courts. An analysis of cases pertaining to US federal climate change policy during the Trump presidency filed in 2017 and 2018 shows that, at least for this group of cases, this trend has continued. Of the 129 cases that sought to advance and uphold climate protections, NGOs made up the vast majority of applicants (66 per cent), followed by governments at 22 per cent.
Non-governmental organizations’ increased role in climate change litigation is due in part to the generous support they receive from wealthy individuals and philanthropies. Jeremy Grantham, who began the Grantham Foundation with his wife, committed $1 billion to remedying climate change. More than $30 million of this funding has gone to non-profits, including University centers in the United Kingdom. Other academic centers like the Sabin Center have also received generous support from wealthy individuals.
Grantham’s support has gone beyond academic research, however. From 2014 until 2016, his Foundation gave nearly $1.5 million to the Union of Concerned Scientists and from 2012 to 2016 it gave nearly $2.5 million to 350.org. While both of these non-profits have actively advocated for climate litigation, their advocacy has been amplified by InsideClimate News, which received a $1.5 million grant from the Grantham Foundation in 2016.
And yet, for all their support and all their funding, these groups have failed to gain traction with successful climate change cases. This is due, in part, to an inappropriate use of litigation to produce outcomes that are outside the scope of the judicial system. Multiple cases within the United States have been dismissed on these grounds. Other critics of climate litigation have argued that these court cases do little to address environmental concerns, enrich lawyers rather than helping municipalities and alienate manufacturers and other companies from being a part of solutions to climate change. Even a proponent of climate litigation like David Bookbinder, who has provided legal counsel on cases against oil companies, admitted in 2017 that the courts are not an appropriate venue to decide climate policy:
“Climate policy is no different than most other national issues. The best solution is tailored congressional legislation. The second-best solution is a regulatory program using existing agencies and legal authority.”
The “lengthy, costly and risky process” of climate change litigation is at odds with the report’s overall conclusion, that “the use of climate change litigation as a tool to effect policy change is likely to continue.” Instead, given the cost and duration of these cases—and their lackluster track record in producing meaningful policy improvements—it’s worth asking why non-governmental organizations keep receiving and spending money on a strategy with no clear-cut success.
