Alexandra B. Klass (University of Michigan Law School) has posted Building Judicial Narratives for Climate Accountability Litigation (76 DePaul Law Review, forthcoming) on SSRN. Here is the abstract:
It has been nearly ten years since the first climate accountability lawsuits were filed by state and local governments against major oil and gas companies and their trade association, the American Petroleum Institute, seeking damages and/or civil penalties for deception and other harms associated with greenhouse gas (GHG) emissions. If any of these climate accountability cases move forward to the fact-finding stage, courts will not have a lot of climate-related precedent available. While there are numerous cases where federal and state courts have reviewed administrative agency decisions to consider or not consider GHG emissions in issuing permits or setting regulatory standards, the role of courts in those cases was not to make their own factual findings (or review findings made by a jury) but instead to evaluate whether an agency’s actions were arbitrary and capricious or otherwise inconsistent with applicable law. Even in the climate accountability cases to date that have rejected the defendants’ preemption and other defenses and begun discovery, there is no developed “judicial narrative” on how climate harms fit within existing legal frameworks under state statutory or common law.
This Article, written for the 32nd Annual Clifford Symposium on Tort Law and Social Policy, explores potential tools for creating a more robust judicial narrative for courts to use in addressing the merits of pending climate accountability lawsuits as well as future claims seeking relief from climate harms. These tools include cases applying state constitutional provisions designed to allow citizens to engage the courts to protect the environment, along with cases that could be brought under existing and proposed state environmental rights statutes, climate superfund laws, and modern “Green Amendments” to state constitutions. This Article also reflects on why courts have a important role to play in addressing liability and damages for climate harms alongside legislatures and regulators.
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