Climate Litigation Strategies and What Works

Aug 27, 2018

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President Trump has released his plan for replacing the Obama administration’s Clean Power Plan with a policy called the Affordable Clean Energy Rule. It would hand much of the authority and responsibility for regulating greenhouse gas emissions back to states.

The Clean Power Plan faced a barrage of legal challenges and never actually went into effect. The new rule is also likely to be challenged in court. Some analysts say it will be easier to defend than an outright repeal would have been. 

Sabrina McCormick is an Associate Professor of Environmental and Occupational Health at George Washington's Milken Institute School of Public Health and lead author of a new analysis of more than twenty-five years of climate litigation.

McCormick looked at a total of 873 different lawsuits and the success rates of those litigations. She found that the success rates of litigations not focused on air were the most successful. The highest level of success rates she saw was when litigants attempted to bring cases about renewable energy and energy efficiency.

“And then we also see cases around that attempt to protect endangered species and biodiversity issues, and some of those cases have been used to address climate change. They have been quite successful as well,” McCormick said.

In terms of how legal challenges to the Trump administration's affordable clean energy rule might fare, McCormick believes that the fact that the administration admitted that the continued operation of coal fired power plants will cause increased mortality to be a good case against the ruling. And one that judges will likely care about.

“You can keep fighting coal fired power plants and you should and that should continue to be a part of litigation in the climate realm," McCormick said. “But one area that there's a lot more work to be done is simply advancing the proliferation of renewable energy facilities across this nation, and in our analysis, we see that that can be done through the courts.”

While winning a case is of course what a legal case hopes for, winning isn’t necessarily the most important thing according to McCormick. She believes that just creating awareness of the problem is a “novel way of understanding the trans generational effects of climate change.” It’s a way of opening people’s eyes to the fact that greenhouse gas emissions today could affect our children’s children in the future.