photo of air pollution. several stacks of smoke can be seen. the photo is orange with the pollution.

Heating Up: The Rise of Climate Change Litigation

Photo Credit: https://www.pexels.com/photo/air-air-pollution-climate-change-dawn-221012/

By: Bobby McNeill
Member, American Journal of Trial Advocacy

On October 9, 2019, the Alaska Supreme Court heard oral arguments for Sinnok v. Alaska,which involves a civil suit brought by a group of teens alleging, among other things, that the state of Alaska has failed to protect its citizens from the effects of climate change.[1]  This comes just days after the climate change debate was front and center in American news after a Swedish teen, Greta Thunberg, set sail from Plymouth, England to New York and subsequently spoke at the United Nations Climate Action Summit to raise awareness about climate issues.[2]  Despite the controversy surrounding this trip and climate issues in general, it is clear that the amount of litigation seeking to implicate climate change as part of a cause of action is steadily increasing.[3]  Although individual actions against corporations have long been a topic of environmental law, Sinnok highlights a more recent trend of plaintiffs filing suits against state and local governments or corporations that directly implicate climate change in the cause of action rather than more “tangible” environmental damage from things such as oil spills or hazardous waste.  However, courts are hesitant to take up these environmental claims due to the “political question doctrine,” often choosing instead to defer to legislative agencies or Congress to avoid constitutional questions raised in the cases.[4] 

Sinnok v. Alaska

Sinnok traces its history back to October 27, 2017, when a group of 16 young Alaskans between the ages of five and twenty filed suit.[5]  In their complaint, the group alleged that the state of Alaska has “contributed to climate change through its actions with respect to fossil fuels and carbon emissions.”[6]  The Plaintiffs sought both injunctive and declaratory relief, seeking to force the state to create a “climate recovery plan” and acknowledge that the state’s actions had violated the plaintiffs’ “fundamental rights to a stable climate system.”[7]  

In granting the state’s motion to dismiss, the lower court addressed a number of issues.  Notably, the trial court first referred to an earlier Alaska case, Kanuk v. State, in which the Alaska Supreme Court granted the state’s motion to dismiss after a group of plaintiffs, many of whom are also involved in the current litigation, brought a number of claims also similar to those in the current litigation.[8]  In granting the state’s motion to dismiss, the Kanuk court turned to American Electric Power Co. v. Connecticut, in which the United States Supreme Court held that the Environmental Protection Agency was more knowledgeable in regard to the scientific and technological aspects of climate issues, and judges were bound by information presented by the litigants and could not conduct their own scientific research.[9]  Thus, the Kanuk court dismissed the plaintiffs’ injunctive claims and concluded that it was not equipped to address questions of a scientific nature and that this task was best left to the executive and legislative branches.[10]  Likewise, the Kanuk court also dismissed the plaintiffs’ declaratory claims holding that granting the claims would only clarify, rather than settle the legal issue and would do nothing to address any of the injuries alleged by the plaintiffs.[11]  

Relying on this earlier precedent and its analysis, the trial court in Sinnok granted the state’s motion to dismiss, finding that granting an injunction would in effect create a new policy, which would bypass the state executive and legislature which, in turn, would violate separation of powers.[12]  The plaintiffs appealed, and the case is now before the Alaska Supreme Court. 

While it is uncertain how the Alaska Supreme Court will rule in Sinnok, the path of litigation and arguments raised are similar to those in Kanuk in which the Alaska Supreme Court affirmed the judgement of the trial court in granting the state’s motion to dismiss.  This raises the likelihood that the plaintiffs will see limited success on their claims.

Other Climate Litigation

i. Colorado

In Colorado, the state Supreme Court addressed similar issues and overturned the State Court of Appeals ruling in COGCC v. Martinez.[13]  In COGCC, the issue to be determined revolved around a state statute declaring oil and gas production in Colorado to be a public interest and requiring the Colorado Oil and Gas Conservation Commission to consider public health factors in its regulation of the oil and gas industry in the state.[14]  The plaintiffs in the original suit, a group of Colorado teens, proposed a rule that would bar the state from issuing any drilling permits unless an independent third-party first confirms that the action can be done so as not to damage Colorado’s atmosphere or affect climate change or public health.[15]  The Commission subsequently refused to engage in rulemaking on the proposal because it believed the proposal was beyond the scope of its authority, and the Commission was already in negotiations with the Colorado Department of Public Health and Environment over issues implicated by the proposed rule change.[16]  The Colorado Court of Appeals, in reversing the trial court’s decision, clarified that the issue of the case was the statutory authority of the Commission and chose to side-step the plaintiffs’ constitutional claims in doing so.[17]  The Colorado Supreme Court also side-stepped the plaintiffs’ purported constitutional claim in overturning the ruling of the appeals court, finding that the court’s ability to determine whether an agency should or should not engage in rulemaking is “highly deferential,” and the Commission could not adopt the proposed rule without running afoul of the state statute which also required it to weigh the interests of the oil and gas industry and weigh the costs of imposing public health restrictions.[18]  

However, in April 2019, Colorado governor Jared Polis signed SB 19-181 into law which requires the COGCC to protect public health and removes the cost-effectiveness analysis requirement in regard to public health.[19]  This effectively negates the COGCC ruling and appears to make it so that the plaintiffs from that case could pursue their proposed rule anew.  

ii. California

California has recently seen a different approach to climate litigation.  While there are citizen groups filing suits, in many cases individual cities have chosen to pursue action against oil and gas companies seeking to receive compensation for what it alleges are the effects of climate change.  In September of 2017, San Francisco and Oakland filed suit against five different oil companies, including Chevron and Exxon, alleging that the actions of the companies encouraged climate change which in turn would cost the cities millions in preventative measures due to rising sea levels.[20]  In June 2018, a federal district judge granted the defendant oil companies’ motion to dismiss.[21]  In City of Oakland v. BP, the court first engaged in a lengthy analysis of the historical study and effects of climate change as well as the claims raised by the cities regarding changing sea levels.[22]  Furthermore, all parties agreed that fossil fuels have contributed to global warming and sea rise and will lead to the consequences alleged by the cities.[23]  Therefore, the issue became whether or not the defendant oil companies should be required to “pay for anticipated harm that will eventually flow from a rise in sea level.”[24]  In granting the defendants’ motion to dismiss, the district court concluded that the scope of the claims involved came under federal law, but the broader issue of climate change regulation should be determined by the legislative branch.[25] 

Conclusion

Regardless of the result of pending litigation regarding climate change, it is certain that legal battles over the issue are here to stay.  What remains to be seen is the law under which such cases will see success as the issue can theoretically involve numerous practice areas from toxic torts and environmental law to constitutional and administrative law.  It is likely that this will be another area in which states begin to deviate widely in how they address the issue.  Certainly, it appears the majority of states will follow the lead of Alaska by punting the issue to the legislature and executive branches.  Likewise, this appears to be the approach of federal courts, particularly in the California case discussed above.  However, there is indication that at least a few states will follow the path of Colorado by passing legislation that seeks to address the concerns of environmental groups prior to litigation.  Ultimately, it is only a matter of time before the United States Supreme Court is forced to address with certainty the issue and determine if climate change issues invoke fundamental constitutional rights suitable for judicial determination, or if the issue is solely a political question best left to Congress and state legislatures.  


[1] Dan Joling, Alaska Supreme Court to Hear Youth Activists’ Climate Change Lawsuit, Time (Oct. 9, 2019), https://time.com/5695811/alaska-supreme-court-climate-change-lawsuit/.

[2] Jeff Brady, Teen Climate Activist Greta Thunberg Arrives In New York After Sailing the Atlantic, NPR (Aug. 28, 2019, 9:21 AM), https://www.npr.org/2019/08/28/754818342/teen-climate-activist-greta-thunberg-arrives-in-new-york-after-sailing-the-atlan.

[3] For a broad overview of recent climate change litigation see, e.g., David Hasemyer, Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today, Inside Climate News (July 22, 2019), https://insideclimatenews.org/news/04042018/climate-change-fossil-fuel-company-lawsuits-timeline-exxon-children-california-cities-attorney-general.

[4] For an overview of how courts approach the political question doctrine see, e.g., Baker v. Carr, 369 U.S. 186, 217 (1962) (Listing a number of elements that deem a political question including “the impossibility for a court’s independent resolution without expressing the lack of the respect due coordinate branches the government”).

[5] Order Granting State’s Motion to Dismiss, Sinnok v. Alaska, 3AN-17-09910 CI, 1 (Alaska Super. Ct. 2017) (http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2018/20181030_docket-3AN-17-09910_order.pdf).

[6] Id.

[7] Id.

[8] Id. at 3 (citing Kanuk v. State, 335 P.3d 1088 (Alaska 2014)).

[9] 335 P.3d 1088, 1098-99 (Alaska 2014) (citing Am. Elec. Power Co., Inc., v. Connecticut, 564 U.S. 410, 426-27 (2011)).

[10] 335 P.3d 1099.

[11] Id. at 1100.

[12] Sinnok, 3AN-17-09910 CI at 9.

[13] Colo. Oil & Gas Conservation Comm’n v. Martinez, 433 P.3d 22, 25 (Colo. 2019).

[14] Id. at 30-31 (citing Colo. Rev. Stat. Ann. § 34-60-102 (West 2019)) (stating that state policy is to “Regulate the development and production of the natural resources of oil and gas in the state of Colorado in a manner that protects public health, safety, and welfare”).

[15] Id. at 25-26.

[16] Id. at 25.

[17] Martinez v. Colo. Oil & Gas Conservation Comm’n, 434 P.3d 689, 696 (Colo. 2018) (holding that “[b]ecause we conclude that the Commission erred in its interpretation of the Act and reverse, we need not address Petitioners’ constitutional arguments.”).

[18] Martinez, 433 P.3d at 25.  The court stated that

the provisions make clear that the Commission is required (1) to foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers, and (2) in doing so, to prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare but only after taking into consideration cost-effectiveness and technical feasibility.


Id.

[19]Matt Bloom, Curious Colorado: What Senate Bill 181 Does – And Doesn’t Do, KUNC (Mar. 29, 2019), https://www.kunc.org/post/curious-colorado-what-senate-bill-181-does-and-doesnt-do.

[20] Timothy Cama, San Francisco, Oakland Sue Oil Companies Over Climate Change, The Hill (Sept. 20, 2017), https://thehill.com/policy/energy-environment/351603-san-francisco-oakland-sue-oil-companies-over-climate-change.

[21] City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017, 1029 (N.D. Cal. 2018).

[22] Id. (stating that “[a]s our globe warms and the seas rise, coastal lands in Oakland and San Francisco will, without erection of seawalls and other infrastructure, eventually become submerged by the navigable waters of the United States[]”).

[23] Id. at 1022 (stating that “[a]ll parties agree that fossil fuels have led to global warming and ocean rise and will continue to do so, and that eventually the navigable waters of the United States will intrude upon Oakland and San Francisco[]”).

[24] Id.

[25] Id. at 1028-29.  The court noted the following with respect to the limitations of the role of the judiciary in addressing climate change:

The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case. While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches.


Id.

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