Climate Change Litigation: Can Lawsuits Force the Government’s Hand at Environmental Policy?
In the late summer of 2017, two successive major hurricanes wrought havoc on the United States and nearby island countries. First, Hurricane Harvey dumped more than 40 inches of rain in some areas of southeast Texas and caused major flooding in Houston and other heavily populated areas. Before Harvey had even dissipated, Hurricane Irma formed and became the most powerful Atlantic hurricane on record before causing massive destruction in the Caribbean and in Florida.
While hurricane damage is hardly a new phenomenon, the unprecedented nature of these twin storms and their impacts has re-ignited the debate over global climate change. While it is extremely difficult to pinpoint global climate change as the reason for any one meteorological event, many climate scientists agree that man-influenced global climate change has made catastrophic meteorological events more likely and more common.
The role of the legal system as a venue for litigating the effects of climate change is complex and unclear. Can government agencies be sued for failing to act on warnings from the scientific community? This presentation looks at this question from the perspective of negligence rules and how those rules may be changing in response to this new dynamic in American history.
The Duty of Care
Negligence is the breach of a duty of care that causes an injury to a plaintiff. Therefore, the underlying prerequisite for any negligence lawsuit is that the defendant owed a duty of care to the plaintiff. Duties include the responsibility to behave in a manner that’s not likely to unreasonably cause harm to others. If I leave a banana peel on the street, I’ve unreasonably breached my duty to keep the public thoroughfare safe for passerby’s. If I own a store, I owe my customers the duty to keep them reasonably safe while in my store. If I produce goods, my duties to my customers include the responsibility to ensure that the products are not unreasonably dangerous. All of this is Tort Law 101.
The Government’s Duty of Care
Things become murkier when it comes to determining what responsibilities the government owes to its people. In a famous 1928 case, Davidson v. Shinomish County, the Washington Supreme Court acknowledged that local authorities have responsibilities to reasonably maintain roads, and that failures that cause accidents can lead to tort liability. The Federal Tort Claims Act specifically anticipates federal government liability for omissions based on the principles of tort law. Common law principles such as the “Public Trust Doctrine” (requiring the government to protect submerged land under navigable waters) have long acknowledged the government’s responsibility to protect and maintain public resources.
Environmental Law Suits Against Government Agencies
Federal environmental statutes empower private citizens to sue the government for violating or failing to enforce statutory requirements. The Environmental Protection Agency website lists hundreds of such actions brought over the past several years. In 2015, a group organized under the name “Our Children’s Trust” sued the United States government in federal court in Oregon over the government’s perceived failure to act on climate change, seeking to force the government to engage stricter greenhouse gas emissions rules. This lawsuit is, in fact, still pending and has survived motions to dismiss.
Other plaintiffs have also filed actions against government entities for perceived failures in protecting the public. In the wake the devastating Hurricane Katrina of 2005, the Army Corps of Engineers was held liable for its negligent maintenance and operation of man-made shipping channels.
A few years later, in Tzakis v. Berger Excavating Contractors, Illinois plaintiffs had suffered flooding when the municipal creek system overflowed after heavy rains. The lawsuit was based, in part, on the municipality’s failure to prepare for the impacts of global climate change. While the lawsuit was dismissed on immunity grounds specific to Illinois law, the court conceded the possibility of government liability for failing to live up to its responsibilities to the public.
Thus, it seems evident that cases could be made that our government has an enforceable duty with respect to climate change. The bigger problem arises with regards to another requirement of every negligence lawsuit: causation. For a negligence lawsuit to succeed, the plaintiff must not only show that the defendant breached a duty, but also that this breach caused an injury. This requires the “attribution” of an “effect” of a meteorological event to the “cause” of greenhouse gas emissions and the government’s failure to regulate them.
Can any one specific incident of harm be linked to climate change to the extent necessary to sustain a lawsuit? Scientists like to express broad effects in probabilities; for example, global climate change would increase the probability of hurricanes forming. But the law, on the other hand, requires proof of causation.
In other contexts, when proving a definite cause and effect relationship is impossible, circumstantial evidence of a probable cause-and-effect relationships can also be sufficient. For example, where a lawsuit alleges injury due to exposure to toxic substances, courts have allowed the action where the plaintiff can show exposure to the substance, quantify the level of exposure and demonstrate that the level of exposure was sufficient to produce the injuries. It would be virtually impossible to prove that the exposure was the only possible cause, but that is unnecessary.
Courts in other countries have gone even further towards quantifying what level of proof of causation may be necessary. For example, recent cases from the United Kingdom consider causation to have been shown when evidence demonstrates that the risk of the event was doubled or more. One court opined that “increasing the risk” is synonymous with “causing the damage” since virtually all cause-and-effect relationships are merely probable rather than certain.
Constitutional, statutory and common law theories can all be appropriated to imply responsibilities of the government to protect its citizens from climate dangers. Claims for failing to adapt to climate change can be brought under traditional negligence principles. However, the causation requirement for negligence actions requires that courts accept “probabilistic” attribution of specific events to general phenomena. Considering the recent meteorological events that are affecting more and more Americans, pressure for courts to adopt this line of reasoning is likely to build. In the meantime, supporters of environmental policies to limit greenhouse gas emissions will continue to explore this avenue to force the government’s hands in these matters.
 149 Wash. 109, 270 P. 422 (Wash. 1928)
 26 U.S.C. § 2674
 In Re: Katrina Canal Breaches Litigation, accessible at http://www.ca5.uscourts.gov/opinions%5Cpub%5C10/10-30249-CV1.wpd.pdf
 Decision accessible here: http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2015/20150403_docket-09-CH-6159-10-CH-38809-11-CH-29586-13-CH-10423_order.pdf
 Marjanac, Patton and Thorton, Acts of God, Human Influence and Litigation, Nature Geoscience 10, 616–619 (2017)
 Cleghorne v. City of New York, 99 A.D.3d 443; 952 N.Y.S.2d 114 (1st Dep’t 2012)
 Henegan v. Manchester Dry Docks Ltd,  WHC 4190 (QB), accessible at https://www.judiciary.gov.uk/wp-content/uploads/2016/02/heneghan-v-manchester-dry-docks.pdf