Chapter 15 Climate Litigation and Elections

Climate Litigation and Elections

– Climate Litigation

– Children’s Climate Litigation
– Fossil Fuel Companies Sue Opponents

– The Role of Elections

– Limits on U.S. Democracy
– What is going on with the Republicans?
–  How to Influence Elections
– Climate Groups’ Electoral Activities

Climate Litigation and Elections

Climate Litigation

With legislative bodies dominated by fossil fuel campaign donations and/or in gridlock with partisan divisions (especially in Congress), climate advocates are increasingly turning to the courts in the effort to halt the burning of fossil fuels.[1]

Courts are often instrumental in local climate campaigns, such as denying permits for fossil fuel infrastructure (gas pipelines). Environmentalists often sue government agencies for failing to comply with the environmental review process. Opponents of local renewable energy projects have also used litigation as a last resort.[2]

There are significant limitations to climate litigation, The court’s role is to enforce existing laws and constitutional provisions, not make new laws or policies. There are restrictions on who can bring litigation. Many individuals and groups lack “standing,” meaning that many individuals and groups are not uniquely harmed by particular actions to allow them to be plaintiffs.[3] Courts are also restrictive in the forms of remedies they are willing to order. Courts are slow and expensive, requiring attorneys and the use of outside experts, especially in a complex case involving climate change.

Broad climate litigation is usually done by larger groups with substantial funding (e.g., foundation grants) for such efforts. Groups can try to find a free (pro bono) attorney to fight individual projects (e.g., challenge permits) but normally will have to raise significant funds to pay an attorney (often at a discounted rate) and associated costs (filing fees, copying).

Lawsuits that seek damages for harm caused by the defendants (tort actions[4]) may be taken on by attorneys who are willing to do it in exchange for a percentage of any damages won. Some groups pursuing a climate litigation strategy aim to get to the point where victories against fossil fuel polluters are likely enough that the convince deep-pocketed law firms that specialize in tort litigation to take on the case. Such tort law firms have played a critical role in holding chemical companies liable for the damage their products have caused. [5] Tort law was used to fight tobacco companies.[6]

Still, courts have occasionally been willing to tackle issues that legislatures often fail to deal with due to the level of controversy. The U.S. Supreme Court for instance ruled against desegregation in Brown vs. Topeka Board of Education, authorized same sex marriages, and for half a century protected abortion rights. Courts in other countries have often been more progressive, such as recognizing the rights of animals and nature.[7]

Fossil fuel companies are also increasingly using litigation to fight back against policies that seek to restrict their operations, including seeking reimbursement for the decreased value of the fossil fuel infrastructure and reserves. As of 2021, fossil fuel companies were suing various countries for $18 billion to recover “lost profits”.[8] One reason the Obama administration and other governments fought against mandatory emission cuts in the Paris climate accords was their worry that it would open the U.S. to liability from fossil fuel companies, including under the provisions of the various global trade agreements that give corporations the power to challenge regulations by national governments that impede their operations.[9]

in 2022, the Intergovernmental Panel on Climate Change (IPCC) recognized the role of litigation in affecting “the outcome and ambition of climate governance”.[10]  The number of climate change-related cases is more than two thousand. This has doubled since 2015, with one-quarter filed between 2020 and 2022. Seventy-three are ‘framework’ cases challenging governments’ overall responses to climate change. Many cases, especially outside of the U.S., are challenging fossil fuel companies, with other corporate targets in the food and agriculture, transport, plastics, and finance sectors. Key areas for future litigation will involve “personal responsibility; challenging commitments that over-rely on greenhouse gas removals or ‘negative emissions’ technologies; short-lived climate pollutants; the climate and biodiversity nexus; and strategies exploring legal recourse for the ‘loss and damage’ resulting from climate change.”[11]

There have been some recent victories that give hope that the courts are becoming more open to ordering climate action. In 2021, the District Court of The Hague ruled that the energy company Royal Dutch Shell must reduce its carbon emissions by 45% compared with 2019 levels over the next 9 years, finding that the current high level of emissions might contribute to imminent environmental harm to Dutch citizens. The Federal Constitutional Court in Germany, the world’s 7th largest emitter of greenhouse gas, ordered the government to adopt a clearer strategy towards achieving its climate targets after 2030. A ruling in 2020 required the Irish government to detail its climate mitigation plan, including how to meet the goal of cutting emissions by 80% by 2050. A 2015 decision ordered the Dutch government to lower domestic greenhouse-gas emissions by at least 25% by the end of 2020.[12]

An increasing number of lawsuits are being filed to hold fossil fuel companies liable for the damages caused by burning fossil fuels even though they knew it was contributing to global warming. It is difficult however for science to determine the level of damage caused by any one particular emitter and to assign damages. In the case against Royal Dutch Shell — and in climate suits against governments — plaintiffs chose to focus on getting the defendants to mitigating looming climate risks, rather than seeking compensation for harm already suffered.

A 2021 report from the United Nations (UNEP) and the Sabin Center for Climate Change Law at Columbia University found that recent trends in climate litigation include: “Violations of ‘climate rights’, i.e. cases are increasingly relying on fundamental human rights including the right to life, health, food, and water; failures of governments to enforce their commitments on climate change mitigation and adaptation; and, Greenwashing” and non-disclosures, when corporate messaging contains false or misleading information about climate change impacts.” UNEP expects climate litigation to increase with respect to companies misreporting climate risks, governments failing to adapt to extreme weather events, and cases seeking to enforce previous court decisions. A rise is also expected in cases concerning persons displaced by climate change impacts.[13]

In August 22, a U.S. federal appeals court ruled that a pair of lawsuits by Hoboken NJ and the State of Delaware to hold oil companies accountable for climate change should be heard in state courts, striking down efforts by the fossil fuel industry to move the cases to get in front of federal judges. More than twenty similar lawsuits seeking damages have been filed in the last five years, mainly using state level tort laws. In addition to fighting lawsuits on jurisdictional grounds, the fossil fuel industry is pushing for states to pass laws that would block municipalities from suing companies for damages related to climate change.[14]

In November 2022, more than 60 Puerto Rican municipalities, which were decimated by Hurricanes Irma and Maria in 2017, are suing Shell and other fossil fuel producers in a first-of-its-kind, class action climate liability lawsuit under RICO, the criminal racketing act. “It alleges that the fossil fuel defendants engaged in a coordinated, multi-front effort to promote climate denial and defraud consumers by concealing the climate consequences of fossil fuel products in order to inflate profits.” RICO has been successfully used to hold tobacco companies liable for lying about the health hazards [1]


Children’s Climate Litigation

In 2015, several dozen youth working with Our Children’s Trust filed a climate lawsuit, Juliana v. United States, asserting that since the federal government actions in permitting fossil fuels are a cause of climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. That lawsuit is still seeking to be heard, having survived various court rulings.[15]

Our Children’s Trust has launched youth-led climate legal actions in all 50 states over the past decade, with legal actions pending in seven states.[16] The one against the State of Montana, filed in 2020, will become the first children’s climate case to have an actual trial in June 2023.[17]

These lawsuits were inspired by a successful class-action suit in the nineties by forty-three students against the Philippine government to protect a forest surrounding their village. It was based on the Public Trust Doctrine, which is based on common law arising out of the Romans in the 6th century. It holds that air, water, and beaches are common property which is not owned by anyone and instead belonged to people as a whole, requiring states to manage certain natural resources for the benefit of the public. While the concept has traditionally been used to manage water resources, recent lawsuits have sought to expand the doctrine to include natural resources that have been impacted by climate change.[18]

Fossil Fuel Companies Sue Opponents

Fossil fuel companies have used the legal system in both the U.S. and abroad to suppress the rights of those who speak out against what such companies have done and are doing.

In the U.S., Earth Rights has identified more than 150 cases in the last decade where the fossil fuel industry filed strategic lawsuits against public participation (SLAPPs) and other judicial harassment tactics such as subpoenas in attempts to intimidate its critics in the U.S. This is part of a broader global trend of trying to restrict public debate, retaliating against those who seek to publicly speak in favor of the public interest.

One case involved Energy Transfer Partners who were seeking to build the DAPL pipeline in North Dakota, sued Greenpeace, various other climate groups and Indigenous water protectors for the Standing Rock protests. Contending the defendants were part of a “network of putative not-for-profits and rogue eco-terrorist groups,” the company sought $900 million in damages under the Racketeer Influenced and Corrupt Organizations (RICO) Act, a law created to fight the mafia. In 2016, Exxon retaliated against investigations into its alleged “fraudulent” climate change practices by the attorneys general of New York, Massachusetts, and the U.S. Virgin Islands by suing the AGs, slapping various nonprofit organizations and climate change experts with broad subpoenas, and threatening to depose seventeen other state attorneys general. The industry hopes to use such harassment to force groups to divert their limited resources into responding while making groups fearful to work together.[19]

The Role of Elections

Elections are how democracies decide who gets to make decisions for the rest of us.

Globally, elections have been critical to climate action. The U.S. pulled out of the Paris climate accords after Donald Trump was elected president. In Australia in May 2022, following massive wildfires, voters ousted the conservative coalition that had championed coal and gas and made Australia one of the climate laggards of the world. Within weeks, a new government updated the country’s international climate targets under the Paris accord. The fate of the Amazon – and democracy – hung in the balance in the November 2022 elections in Brazil, as progressive challenger and former Brazilian president, Luiz Inácio Lula da Silva defeated conservative incumbent Bolsonaro.[20]

Climate has been a key factor in a number of recent European Countries such as Switzerland [21] and Sweden[22] (the latter in the 2018 elections facing the smoke from fires in the artic.) Globally, the Green Party has been able to use their presence in a number of coalition governments to advance climate matters. Support for the Greens has surged as many voters make climate more of a priority. [23]

While there are numerous problems with America’s system of democracy and election, elections are still the generally agreed way to decide how we will be governed. A change in a few seats in Congress, state legislature or local government can be critical in determining which party is in control and willing to advance climate initiatives. Electing a few more committed climate activists can also be instrumental in prodding the Democratic Party to be bolder.

One study found that the Democrats’ endorsement of the Green New Deal provided a 2-percentage point increase in their vote share in the 2020 Congressional elections.[24]

Limits on U.S. Democracy

Election districts in many states and communities are heavily gerrymandered, drawn so that in most cases you know which of the major parties will win. One exception is for races that cover the entire jurisdiction, such as statewide races for the U.S. Senate. Thus, for climate activists, running climate activists in Democrat primaries can be an effective way to prod the Democratic leadership to be stronger on climate action. Many climate activists also focus on the limited number of seats nationwide that will determine which party controls the Senate and House.

The U.S. is one of only three democracies in the world which use a winner-take-all system (the one with the most votes win), rather than the more standard system of proportional representations, where legislative bodies are determined by the percentage of votes each party gets. Proportional representation creates legislative bodies that are more reflective of the ideological makeup of the citizenry. The U.S. is unique in that it shoehorns all political positions into two main parties, the Democrats and Republicans. The United States also enables an outsized role for campaign donations which enables the wealthy and corporate interests to dominate the electoral process. [25]

The problem is even worse at the federal level, as the wealthy male landowners who devised the constitution sought to ‘balance’ the interests of small vs large states, which included protecting the powers of the slave states. This led to the Electoral College, which has resulted in recent decades that Republicans who won the White House got a minority of the votes nationwide. The founding fathers – who excluded women, slaves, nonlandowners and Indians – were also worried about the power of the “common man” to rapidly change political leaders, so they created the U.S. Senate, which not only is inherently undemocratic (two members per state regardless of the number of residents) but has six-year terms to guard against the more “mercurial” House of Representatives elected every two years.

In recent decades Congress has been so dominated by partisan gridlock that it seems unable to function, particularly when the Democrats are in charge, since they are both more politically diverse than the GOP and more restrained in exercising power when they have slim majorities.

The design of America’s electoral system promotes the creation of two centrist parties and then the role of the money shifts it further to the right. The lack of third parties in the U.S. means that there are less avenues for innovative ideas and alternatives to be raised, a major problem for any democracy but particularly on climate action.[26] Still, throughout American history, it has often been third parties that raised issues that proved popular enough with voters that eventually the mainstream parties came to accept. This includes issues such as abolishing slavery, giving women the right to vote, social security, minimum wage, same sex marriage, and unemployment compensation.[27]

What is Going on with the Republicans?

While the GOP has long been dominated by climate deniers, in the 2022 mid-term elections they sought to project a more even-handed approach. Few bought their spin. Politico responded to a climate plan released by Congressional Republicans by noting that they “continue to resist setting a specific emissions reduction target. They oppose policies to reduce fossil fuel use, including regulations, taxes, or mandates. And Graves said House Republicans, unlike at least some GOP counterparts in the Senate, are skeptical of the government extending and expanding clean energy tax credits that the renewable industry says are critical to helping them deploy zero-carbon power at the scale needed to address climate change.” The Washington Post added, “It is unclear whether the GOP plans would, in fact, reduce carbon emissions, or if they instead largely amount to an attempt to deflect political blame over Republicans’ long-standing opposition to addressing catastrophic global warming.”[28]

Roger Karapin, a political scientist at Hunter College and the Graduate Center, CUNY, provided some interesting insights into the Republican Party growing opposition to climate change.[29] One hopeful point he made is that the parties will shift their positions if enough voters have moved in a particular direction. He noted that majorities of Republican voters support various climate proposals, including tougher carbon emissions limits and a carbon tax to be paid by fossil fuel companies. More than 70% of voters support expanding wind and solar energy, and only 10-35% favor using more coal or natural gas.

Karapin notes that at the turn of the century, Republican leaders were willing to take up the climate issue. “President George W. Bush initially favored carbon dioxide regulation, and moderate Republicans leaders supported a national emissions trading system. But the national GOP turned hard against climate policy once Barack Obama was elected president, committing to the fossil fuel industries, and promoting an economy based low-cost, fossil fuel energy. On this and other issues (same-sex marriage, guns, abortion bans), Republicans committed to a base mobilization strategy even though its positions were unpopular with a majority of the public. They combined this base mobilization strategy for winning elections with the pursuit of a minority-rule strategy within constitutional rules (e.g., electoral college, voting rules in U.S. Senates. And under Donald Trump’s leadership, they began overturning traditional rules for deciding elections in order to take power.”

But while the Democrats now publicly acknowledge the realities of climate change and the reasons for it, they have remained reluctant to directly confront the fossil fuel industry.[30] They have failed to call for a halt to new fossil fuel infrastructure and the leadership have continued to promote an all-of-the-above energy strategy while ramping up support for renewable energy. But they have been quick to embrace speculative solutions supported by the fossil fuel industry, such as carbon capture and sequestration.

How to Influence Elections

There are various handbooks showing how groups can impact on elections.[31]

One electoral activity that can be nonpartisan is voter registration, particularly targeting constituencies more likely to support climate action.

Groups can also use elections to raise the visibility of climate issues (e.g., asking a climate question at a candidate debate or campaign event.) In 1980, I helped coordinate the national Campaign for Safe Energy to get the Presidential primary candidates in both parties to address the issue of nuclear power and renewable energy, often handing out a list of possible questions to attendees at campaign events. We got the Democratic Party to put our positions into their national platform, the only platform issue President Carter lost before the convention itself. (In hindsight, a platform fight at the convention would have generated more publicity).[32]

Most climate groups that engage in electoral politics do so by endorsing candidates. The Sierra Club and the League of Conservation Voters are among the best known for their electoral work, but others such as the Sunrise Movement, Food and Water Watch, and have also increasingly become active in elections. While IRS rules seek to prohibit tax exempt nonprofits known as 501c3[33], the big groups have the resources that allow them to easily set up additional organizational structures that enable electoral work.

Most political analysts would advise climate groups to maximize their impact by focusing on races that are likely to be close where the groups involvement can make a major difference. Especially critical would be races where the results could determine which party controls the legislative body.

Spirited challenges to incumbents can also have an impact. Politicians can become stronger on climate after a strong protest vote to foreclose similar challenges in the future. While it was the intense organizing by grassroots groups that moved the NY Governor to ban fracking, the higher-than-expected election results by relatively unknown law professors Zephyr Teachout in the democratic primary followed by the 5% vote in the general election by the Green Party’s Howie Hawkins (the best result in the state by a progressive third party in a century) was a contributing factor.

In recent years, with the Republicans’ growing opposition to climate action, most climate groups almost exclusively endorse Democrats. Some environmental groups, especially the more moderate ones (e.g., land preservation) worry that with so many environmental groups being seen as appendages to the Democrats that it undercuts any potential of winning support for environmental measures from Republicans. The LCV, a more corporate-oriented group, for many years have pursued a strategy of trying to move moderate Democrats and Republicans to support environmental causes.[34]

Other groups put out voting guides which rank candidates on their environmental performances[35]. Such rankings are a way to signal to voters who to support, and many candidates will publicize a positive ranking from well-known groups in their campaign materials. The media also pay attention to such rankings. One challenge in compiling an accurate scorecard is that in many legislatures almost all votes are done by party line, so it is more of a ranking of the party than individual legislators.

While money remains the main fuel of elections, the second most important aspect is Get-Out-The-Vote efforts (e.g., door knocking, voter identification, phone banks, election day turnout). And with the grassroots infrastructure of the national political parties largely eroding away in recent decades, even a minimal amount of such efforts by a climate group is greatly appreciated by politicians, and often rewarded by them being willing to embrace the groups’ legislative agenda.

Groups that endorse candidates for office usually have some form of questionnaire and interview process where they ask candidates where they stand on issues. Climate groups can ask their allies (e.g., unions, other environmental groups) to include some specific questions related to climate. This also helps educate the candidates about the issue. Climate groups can also do their own survey of candidates on various climate issues and release the results to the public. However, groups that are not supposed to endorse candidates (e.g., 501c3) need to be careful not to design the survey in such a way that it sends a clear message to support particular candidates (e.g., can include questions about other issues).

Groups can also share their policy positions with candidates, urging them to adopt them as their own (groups, especially 501c3, should probably send them to all candidates. Groups can also hold a forum on climate where it invites candidates to speak on climate (unless you are endorsing specific candidates, invite them all).

Climate Groups’ Electoral Activities

While a number of climate groups endorse candidates, Democrat Socialists of America (DSA) in recent elections has focused on running their own candidates in Democratic primaries to provide leadership on their agenda rather than endorsing incumbents or other traditional challengers. They do intensive analysis of the candidates and the demographics of the districts before selecting only a few campaigns to devote all their resources on with the hope of winning[36]. DSA is a long-standing organization that was revitalized by an influx of young organizers following the presidential campaigns of Bernie Sanders.

Their impact has been most noticeable in NYC, where they helped elect Congressmember Alexandria Ocasio-Cortez (AOC), who defeated a powerful and generally well-liked incumbent in the primary. They have a passionate, committed volunteer base and a high level of mastery of electoral campaign techniques. They have elected a number of federal and state officials in New York, but their number of candidates remains relatively low. DSA has an ecosocialist working group[37] to help build local power for climate and environmental justice, including the Green New Deal and public power.[38]

The Sunrise Movement has made a major commitment to electoral politics. While they devote consider resources nationally to GOTV efforts in support of Democrats in key close elections, they have also been willing to publicly confront and push Democratic Party leaders on climate. In 2020 Sunrise contacted over 6.5 million voters in the primaries and general election and says it created the largest youth turnout in history. The group has played a critical role in a string of recent progressive primary victories, leading texting and phone banking operations for candidates like Jamaal Bowman, the middle school principal who defeated 31-year incumbent Eliot Engel in New York, and Cori Bush, who knocked off 10-term incumbent Lacy Clay in Missouri. Sunrise also does considerable organizing campaigns outside of electoral politics and has shown an ability to mobilize substantial number of young activists and to do creative direct actions included against elected officials. It was newly elected AOC (Congressmember Ocasio-Cortez) who joined Sunrise activists sitting in Speaker Pelosi’s office to demand action for a Green New Deal. [39]

For the 2022 midterm federal elections, a half dozen climate groups formed the Climate Votes project to invest $100 million for multiple ad campaigns, as well as an in-person field organizing in battleground states including Arizona, Nevada, Pennsylvania, Georgia, and others. The groups included Climate Power Action PAC, Climate Reality Action Fund, EDF Action Votes, League of Conservation Voters Victory Fund, NRDC Action Votes, and NextGen PAC. [40] (A political action committee (PAC) is a political committee organized for the purpose of raising and spending money to elect and defeat candidates.)

The Next Generation Pac has registered 1.3 million voters since its founding in 2013. Its founder, billionaire Tom Steyer, spent more money in the 2014 and 2016 elections than any other donor, supporting candidates with strong climate agendas. Besides running for president in the 2020 democratic primary, Steyer donated more than $55 million to Democratic candidates and liberal causes in the 2020 campaign cycle — more than any other donor. NextGen Climate Action Committee spent $40 million in the 2020 cycle, including more than $8.5 million to support Democratic presidential nominee Joe Biden and oppose Trump.[41] Many climate activists however question how effective Steyer’s spending has been, starting with the more than $70 million he spent in 2014.[42]

Climate Hawks Vote, founded in 2013, is another political operation (a Super PAC) which supports candidates and elected officials that make climate action a top priority. It was co-founded by blogger and activist RL Miller, who as California Democratic Party’s environmental caucus was frustrated that significant parts of the Democratic Party support fossil fuel. It also gives scores to elected officials based on their climate positions. It has a relatively small budget, however.[43]

As discussed earlier, the Fossil Fuel companies invest heavily in campaign contributions. In the 2018 midterm elections, they made more than $350 million in campaign contributions and lobbying expenditures – 13 times greater than renewable energy companies.[44] The U.S. Chamber of Commerce us the largest dark money, pro-fossil fuel trade association in the U.S. with an extensive history of supporting climate deniers and spreading misinformation about climate change. It spent nearly $160 million on congressional lobbying in 2019-20.[45]








































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