By Tanner Sparrow
As global carbon emissions continue to rise following the Paris Agreement and the earth continues to speed towards irreversible climate change, the Paris Agreement, despite its successes, faces repeated criticism.[1] Given that all nations’ current targets are not enough cumulatively to keep the climate from staying below the 2-degree Celsius threshold,[2] and the plan generally lacks international incentives or enforcement,[3] this criticism may be warranted. However, an unintentional effect of the Paris Agreement has been its cataclysm for citizen led climate change litigation.[4] As this climate litigation envelops governments post-Paris Agreement, domestic litigation, using the various legal sources, tools, and theories at their disposal, has arisen as an enforcer, causing domestic courts to uphold the commitments of the Paris Agreement on their own nations.[5]
On the other hand, in the United States, despite the Executive Branch’s entry-exit-reentry with the Paris Agreement,[6] courts have stonewalled climate litigation[7] in line with their traditional practice of rejecting significant judicial action in the area.[8] The United States lacks the mechanisms that have empowered other countries’ judicial systems to find standing and hold their governments accountable for their Paris Agreement pledges—namely, Norway’s explicit constitutional protection of the environment,[9] and Colombia’s constitutional provision giving international law status in domestic courts.[10] The lack of mechanisms, coupled with restrictive standing requirements, make it less shocking that plaintiffs in the U.S have not duplicated other countries’ successes in using the courts for climate action.
The recent case Juliana v. United States, brought by youths claiming 5th amendment due process rights to a climate capable of sustainable of human life, illustrates this point.[11] The notoriously pro-environment 9th Circuit reversed the Eastern District of Oregon’s denial of the government’s motion to dismiss, overruling the District’s finding of standing.[12] While the 9th Circuit court was sympathetic to the youth and accepted the grave danger of climate change,[13] it nonetheless would not budge on its reluctance to undertake judicial rulemaking—holding that the plaintiffs had failed to show the Article III courts could redress it.[14]
If the United States had the tools of other nations—Norway’s explicit constitutional environmental protection or Colombia’s constitutional provision giving international law status in domestic courts—cases like Juliana would likely survive and push the government toward action. However, the United States does not have these tools in their toolbox, and most courts have been reluctant to read it into the Constitution. Thus, the United States will likely need Congress’s statutory adoption of the Paris Agreement in order to address these issues—which could open up government inaction to citizen suits, as illustrated in the Irish case Friends of the Irish Environment v. Ireland et. al.. In this case, the citizen group Friends of the Irish Environment was successful in petitioning the Court to order the Government to adopt greater specificity in the climate goals they put forth in their 2017 National Mitigation Plan—the government’s policy response to their statutory adoption of the Paris Agreement (The Carbon Development Act of 2015).[15]
This statutory adoption is perhaps the most realistic vestibule to advance climate litigation further in the courts, however, avoiding climate disaster is a time-sensitive game, and the U.S. is going to need more—including other significant legislative action by the federal government and the states to hit the goals of the Paris Agreement.[16] In the meantime, suits by private citizens against energy companies may increase the pressure on the energy sector to reduce carbon and other greenhouse gases, but it is doubtful that this alone will be enough.[17]
[1] Some critiques of the Paris Agreement are based on its lack of mechanisms for enforcement, see, Michael B. Gerrard, Sadly, the Paris Agreement Isn’t Nearly Enough, Envtl. F. 57 (2016) (“Regrettably, the Paris conference did not lead to agreements that will in fact achieve that objective. Almost all countries put forward their own nonbinding, unenforceable pledges for reducing their emissions. . . these pledges if fully carried out would lead to a world in 2100 that is around 3.5 degrees above pre-industrial conditions. Such a world would be utterly catastrophic,”). Other critiques appear political, see,Ted Cruz (@SenTedCruz), Twitter, https://twitter.com/SenTedCruz/status/1352040800646029312?s=20 (“By rejoining the Paris Climate Agreement, President Biden indicates he’s more interested in the views of the citizens of Paris than in the jobs of the citizens of Pittsburgh…”); see also, Coral Davenport, A Climate Accord Based on Global Peer Pressure, The New York Times, https://www.nytimes.com/2014/12/15/world/americas/lima-climate-deal.html; Oren Cass, Why the Paris climate deal is meaningless, Politico (Nov. 29, 2015) (“After all this, the final submissions are not enforceable, and carry no consequences beyond “shame” for noncompliance — a fact bizarrely taken for granted by all involved.”).
[2] Kieran Mulvaney, Climate change report card: These countries are reaching targets, National Geographic, Sept. 19, 2019. https://www.nationalgeographic.com/environment/2019/09/climate-change-report-card-co2-emissions.
[3] Melissa Denchak, National Resources Defense Council, Paris Climate Agreement: Everything you Need to Know. Dec. 12, 2018. https://www.nrdc.org/stories/paris-climate-agreement-everything-you-need-know (“The pact . . . contains no enforcement mechanism, but instead establishes a framework for international negotiations of future agreements, or protocols, to set binding emissions targets.”).
[4] In Feb. 2020, the International Bar Association released guidelines on climate litigation. Climate Change Model Statute, International Bar Association, https://www.ibanet.org/Climate-Change-Model-Statute.aspx
[5] See, Urgenda Foundation v. State of the Netherlands: Rb. Den Haag, 24 juni 2015, NL 2015, 7196 m.nt. (Urgenda Foundation/The State of the Netherlands (Ministry of Infrastructure and the Environment) (Neth.) (EnglishTranslation), http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2015/20150624_2015-HAZA-C0900456689_decision-1.pdf; http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190919_2017-No.-793-JR_judgment-2.pdf; Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Civil abril 5, 2018, M.P: Luis Armando Tolosa Villabona, STC4360-2018 (Colom.). For an overview and an unofficial English translation of key excerpts from the decision, see Future Generations v. Ministry of the Environment and Others (Demanda Generaciones Futuras v. Minambiente), Climate Change Litig. Databases, http://climatecasechart.com/non-us-case/future-generation-v-ministry-environment-others/ (last visited Nov. 4, 2018).
[6] The United States agreed to the Paris Agreement in 2015 under the Obama administration, then rescinded under the Trump administration, then re-entered the agreement under the Biden administration. See, H.J Mai, U.S. Officially rejoins Paris Agreement on Climate Change, NPR (Feb. 19, 2021) https://www.npr.org/2021/02/19/969387323/u-s-officially-rejoins-paris-agreement-on-climate-change.
[7] See, Juliana v. United States, 947 F.3d 1158 (9th Cir., 2019).
[8] See, e.g., Daniel A. Farber, Is The Supreme Court Irrelevant? Reflections on the Judicial Role in Environmental Law, 81 Minn. L. Rev. 547 (Feb. 1997); Stephen M. Johnson, The Roberts Court and the Environment, 37 B.C. Env’t. Aff. L. Rev. 317 (2010).
[9] Nor. Const. Art. 112., https://lovdata.no/dokument/NLE/lov/1814-05-17?q=grunnloven.
[10] Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Civil abril 5, 2018, M.P: Luis Armando Tolosa Villabona, STC4360-2018 (Colom.). For an overview and an unofficial English translation of key excerpts from the decision, see Future Generations v. Ministry of the Environment and Others (Demanda Generaciones Futuras v. Minambiente), Climate Change Litig. Databases, http://climatecasechart.com/non-us-case/future-generation-v-ministry-environment-others/ (last visited Apr. 1, 2021) (hereinafter, “Future Generations”).
[11] Juliana v. United States, 947 F.3d 1159, 1173 (9th Cir., 2020) (“A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”).
[12] Id.
[13] Id.
[14] Id.
[15] Friends of the Irish Env’t, [2017] IEHC 747 (High Ct., 19, Sept. 2019); Friends of Irish Env’t, [2020] [Appeal No: 205/19] (31, July 2020) (Judgment of Mr. Justice Clarke, Chief Justice) (upholding Higher Court).
[16] Kieran Mulvaney, Climate change report card: These countries are reaching targets, National Geographic, Sept. 19, 2019. https://www.nationalgeographic.com/environment/2019/09/climate-change-report-card-co2-emissions.
[17] See, Rebecca Hersher, Supreme Court Considers Baltimore Suit Against Oil Companies Over Climate Change, NPR, https://www.npr.org/2021/01/19/956005206/supreme-court-considers-baltimore-suit-against-oil-companies.