An Empirical Survey of Climate Change Litigation in the United States

• Date: 01 July 2010

40 ELR 10644 ENVIRONMENTAL LAW REPORTER 7-2010

A R T I C L E S

An Empirical

Survey of Climate

Change Litigation

in the United

States

by David Markell and J.B. Ruhl

David Markell is the Steven M. Goldstein Professor,

the Florida State University College of Law. J.B. Ruhl

is the Matthews & Hawkins Professor of Property,

the Florida State University College of Law.



A quickly growing number of commentators have sug-

gested that the U.S. courts are already signicant drivers

of climate change policy, and that their role is likely to

increase. In addition to fashioning law on their own,

judicial decisions have signicant implications for the

work of the other branches of government. is Arti-

cle provides a chronicling of every climate change case

led through December 31, 2009 (more than 130 such

cases). It presents basic information about the cases, e.g.,

the t ypes of cases, where they have been brought, the

types of parties involved, and the outcomes. It also ana-

lyzes the data to identify trends that have emerged thus

far. e Article, in short, presents an empirically based

picture of what one  headline describes

as courts serving as “battleelds” in “climate ghts.”

The burgeoning law review literature on climate

change reects the explosion of interest in this

potentially game-changing phenomenon.1 Climate

change is now widely considered to be among the handful

of most important public policy issues of our time.2 If any

topic deserves ca reful scrutiny from a range of perspectives,

including the perspectives of a diversity of scholars, climate

change qualies.

e range of issues climate change raises is sweeping. For

example, there are fundamental, still unsettled, issues of

institutional governance within the federal executive—which

institution(s) should be in the “lead” on climate change, what

roles they should play, and how to facilitate coordination

among ke y federa l and other actors, to name a few.3 Simi-

larly, the U.S. Congress’ role in dealing with climate cha nge

remains a work in progress. ere is general skepticism about

the suitability of existing statutes such as the Clean Air Act

(CAA)4 and the Endangered Species Act (ESA)5 to deal with

climate change challenges.6 While Congress has adopted an

1. A Westlaw search in for climate w/2 change yielded a list of 9,860 articles (last

visited March 23, 2010). e American Bar Association Section of Environ-

ment, Energy, and Resources (SEER) was the rst to publish a book-length

treatment of domestic climate change law and litigation, in G C

C  U.S. L (ABA SEER, Michael B. Gerrard, ed. 2007). In 2009,

several additional books on legal aspects of climate change were published,

including two 2009 climate change casebooks, R C. H 

., C C L: M  A (West 2009) and

C W  ., C C   L (LexisNexis 2009).

2.  I P  C C, S  P-

   S R   IPCC F A R-

 1 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/syr/

ar4_syr_ spm.pdf. (citing climate change as one of the greatest challenges the

world faces). is view is not unanimous. For example, a March 2009 Gallop

Poll reects the “highest level of public skepticism about mainstream report-

ing on global warming seen in more than a decade,” with 40% of those polled

saying the media are “exaggerating the issue.” Yale Forum on Climate Change

and the Media, 

Risks, www.yaleclimatemediaforum.org/2009/03/gallup-poll-more-americans/

(last visited Nov. 20, 2009).

3. In addition to issues concerning the str ucture of governance, there are obvi-

ously extraordinarily important normative issues, as well as the need to identify

an appropriate mix of tools to address climate change challenges.

4. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

5. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

6. Nicholas Inst. for Envtl. Pol’y Solutions,  

 , http://www.nicholas.duke.edu/institute/clean.air.2009.

html (last visited Nov. 8, 2009) (involving a one-day conference at Duke Univ-

eristy about the future of the CAA). For general reviews of some of the options

        

provided by their research assistants, Abigail Dean, Gina Iacona, and







work in this arena, upon which the authors have built. e dataset

          

   

        



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