Responding to Climate-Related Harms: A Role for the Courts?

• Author: Shannon Roesler
• Pages: 181-197

181

Chapter 9

Responding to Climate-Related

Harms: A Role for the Courts?

Shannon Roesler

Some unique and threatened s ystems, including ecosystems a nd cultures, are

already at risk from cl imate change (high condence).

Climate-cha nge-related risks from extreme events, such as heat waves, extreme

precipitation, and coastal oo ding, are already moderate (high condence).

Risks are unevenly di stributed and are g enerally greater for disadvantaged

people and communities in cou ntries at all levels of de velopment.1

ese quotations come from three of the ve “reasons for concern” identi-

ed by the Intergovernmental Panel on Climate Cha nge (IPCC) a s “start-

ing point[s] for evaluating dangerous anthropogenic interference with the

climate system.”2 In a report that understandably focuses much attention on

the heightened probability and magnitude of harm associated with further

warming in the future, the risks identied in the rst two quotations sta nd

out because they already exist. Some communities, including coastal villages

in the A rctic and small island states, are already facing threats to their very

existence. In addition, t he risks associated with extreme weather events are

widespread and already here. When these risk s are considered alongside the

reality that they are “unevenly d istributed” and “generally greater for disad-

vantaged people,” t hey present policy questions not only about long-term

adaptation planning, but also about immediate disaster response and aid.

As poor and developing nations participated in international climate

negotiations this past December, they were keenly aware of the costly bur-

dens of adaptation and response to climate-related harms. Reports from t he

recent climate talks suggest that the “rift” between rich and poor countries

over climate nancing threatened to derail the negotiations toward a cli-

1. I P  C C, C C 2014: I, A

 V 12 (2014), available at https://www.ipcc.ch/report/ar5/wg2/ [hereinafter 2014

IPCC A R].

2. Id.

182 Contemporary Issues in Climate Change Law & Policy

mate treaty.3 Developed countries had pledged $100 billion a year to com-

pensate less-developed countries for climate-related loss and damage and to

fund adaptation measures.4 Fundraising eorts have raised billions, but have

fallen far short of the $100 billion goal.5 Although the nal climate agree-

ment recognizes the pressing need to address climate-related loss and dam-

age, it does not contain specic binding commitments by developed nations

toward this end.6

Without an international compensation scheme, vulnerable communities

are largely left to seek remedies through domestic political processes and

courts. is chapter investigates the role of U.S., and in par ticular federal,

courts in mitigating and redressing climate harms. To date, plaintis seeking

damages from private defendants, such as oil companies, utilities, and auto-

mobile manufacturers, have not had an opportunity to litigate the merits of

their cases. Courts routinely dismiss t hese suits on threshold issues, nding

that common law actions are displaced by statutory law or are nonjustic-

iable under the U.S. Constitution. Suits seeking to force governmental action

that would mitigate climate ha rms have suered simila r fates. e recurring

theme in these cases is that actual litigation of these issues would threaten

the constitutional separation of powers among the executive, legislative, and

judicial branches. In other words, in a democratic society, resolution of these

questions should be left to political processes, rather than the courts.

is chapter seeks to interrogate the assu mptions behind this separation-

of-powers narrative. Using the example of Alaska Native communities in the

Arctic, the rst section provides a brief overview of the present and imminent

climate harms that these communities face. is is followed by a discussion of

the courts’ general reluctance to hear cases in which plaintis seek to redress

or mitigate these harms. e nal section asks what we can learn about the

role of courts in a democratic societ y by looking at the separation-of-powers

narrative through the lens of two interdisciplinary approaches to law and

society: legal geography and socio-legal studies. In overlapping and dierent

ways, these two “lenses” undermine the premise that climate change liti-

gation threatens the constitutional separation of powers t hat underpins the

3. Dean Scott, “Lack of Trust” on Climate Aid Still Divides Wealthier, Poorer Nations Ahead of Talks, 46

E’ R. (BNA) 2002 (July 3, 2015); see also Eric J. Lyman, UN Climate Negotiation Leaders Trim

Paris Document, 46 E’ R. (BNA) 2258 (July 31, 2015) (noting that “little progress” has been

made on issues, such as loss and damage and adaptation nancing, which are of critical importance

to developing nations).

4. Scott, supra note 3.

5. Id.

6. United Nations Framework Convention on Climate Change, Conference of the Parties, Paris Agree-

ment, art. 8, in Decision 1/CP.21 (Adoption of the Paris Agreement) (2015), U.N. Doc. FCCC/

CP/2015/L.9/Rev.1, available at https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.