Will courts make climate change law?

The US Houses of Congress will not in the foreseeable future compel fossil fuel companies to reduce Green House Gas emissions to lessen the serious risks caused by climate change. If elected lawmakers won’t act, what might the Courts do?

In 2011, 4RG and other environmental organizations brought together a Panel of experts to analyse whether courts would make “climate change law”.  We speculated that the US Supreme Court might issue a declaration that a failure to restrict emissions from fossil fuels infringed the constitutional rights of future generations.  But it would not order the US Government to pass specific laws reducing GHG emissions as it would be too difficult to monitor compliance with such an order.

The Panel did not consider whether the US courts would award damages to parties who have suffered monetary losses from climate change.  A big question is: who should pay these damages, considering that

  1. many of the largest fossil fuel companies operate in other countries and
  2. many of these countries encourage or approvethe exploitation of fossil fuels.

A Federal Court judgment that very recently dismissed an action by San Francisco Bay municipalities to recover costs they incurred in protecting coastlines from flooding attributable to sea level rise – which all parties admitted had been caused by global warming.

The San Francisco claimants submitted that the court could award damages under the tort of “nuisance”. This tort requires that the court weigh the anticipated harm against the social utility  of the defendants’ activities.

In the judge’s opinion, an award of damages would not be fair to the five defendants who were among the world’s largest share capital oil companies.  He did not think it fair

“. . .  to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?”.

As for the social utility of extracting, refining and selling oil he noted:

“Our industrial revolution and the development of our modern world has literally been fueled by oil and coal . . .  “Without those fuels, virtually all of our monumental progress would have been impossible.”

In dismissing the action, the court concluded that the courts were not the proper place to deal with global issues of this nature.

The Bay municipalities may appeal this decision.  But they will have a problem convincing the US Supreme Court (which – by a margin of one – used to be an activist court).  The Supreme  Court is in the process of “changing the guard” as judges retire and are replaced by President Trump.. The new Court will probably adopt a conservative approach to lawmaking and will be very reluctant to develop new law in such a controversial area.


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