Using Issue Certification Against a Defendant Class to Establish Causation in Climate Change Litigtion
| Date | 01 April 2022 |
| Author | James E.A. Rehwaldt |
52 EL R 10292 ENVIRONMENTAL LAW REPORTER 4-2022
ARTICLES
by James E.A. Rehwaldt
SUMMARY
Efforts to hold major greenhouse gas emitters accountable for the harms caused by global climate change
have been consistently frustrated at the procedural stages of litigation in U.S. federal courts. This Article
explores using a combination of class action mechanisms to engage with these threshold barriers and hold
carbon-major corporations responsible for climate impacts. Specifically, it proposes using issue certifica-
tion under Federal Rule of Civil Procedure 23(c)(4) against a defendant class of carbon-major polluters to
overcome the causation question that has obstructed federal cour ts’ engagement with the merits of climate
change litigation.
USING ISSUE CERTIFICATION
AGAINST A DEFENDANT CLASS TO
ESTABLISH CAUSATION IN
CLIMATE CHANGE LITIGATION
[T]he mere fact that [a single] suit alone ca nnot halt cli-
mate change does not mea n that it presents no claim suit-
able for judicial resolution.
Juliana v. United States, 947 F.3d 1159,
1175 (9th Cir. 2020) (Staton, J., dissenting)
To date, attempts to hold fossil fuel companies
and other major greenhouse gas (GHG) emitters
accountable for the damage wrought by global
climate change have been consistently frustrated in U.S.
federal courts. is Article examines the potential for a
combination of class action mechanisms under the Fed-
eral Rules of Civil Procedure to overcome the threshold
barriers hindering such litigation and to hold carbon-
major corporations responsible for the impacts of climate
change. Specically, it proposes using issue certication
under Rule 23(c)(4) against a defendant class of car-
bon-major polluters to overcome the causation problem
obstructing federal courts’ engagement with the merits
of this critical environmental issue. Utilized to its fullest
extent, this conguration could establish legal account-
ability for carbon-major corporations’ contributions to
global climate change. At a minimum, it can facilitate
future lawsuits by engaging with the judicial obstacles
preventing climate change claims from being litigated on
the merits in federal fora.
e Article proceeds in ve parts. Part I discusses exist-
ing problems with federal climate change litigation, and
outlines the scope of prominent challenges. Part II intro-
duces the defendant class, proposing its use as a means of
aggregating the causation element described in Part I. Part
III considers Rule 23(c)(4) as an additional class action
mechanism that can isolate the aggregated causal ques-
tion for a preliminary issues trial. Part IV cha rts a course
for litigation that avoids threshold obstacles and addresses
practical concerns under contemporary cla ss action juris-
prudence. Part V concludes.
I. Existing Issues With U.S.
Climate Change Litigation
Dened broadly, climate change litigation includes “any
piece of federal, state, tribal, or local adm inistrative or judi-
cial litigation in which the par ty lings or tribunal decisions
directly and expressly raise an issue of fact or law regard-
ing the substance or policy of climate change causes and
im pa ct s .”¹ at denition covers a lot of ground, but the
1. David Markell & J.B. Ruhl, An Empirical Assessment of Climate Change in
the Courts: A New Jurisprudence or Business as Usual?, 64 F. L. R. 15, 27
(2012).
James E.A. Rehwaldt is a 2022 J.D. candidate at Lewis & Clark Law School.
Author’s Note: The author wishes to express gratitude to
Profs. Robert H. Klonoff and Dr. Lisa Benjamin for their
guidance and encouragement.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
4-2022 ENVIRONMENTAL LAW REPORTER 52 ELR 10293
relevant scope is easy enough to ext ract. ere are basically
two kinds of climate change litigation: (1)claims against
government entities for regulatory failures; and (2)claims
against private parties for wrongdoing and damages.
According to the Sabin Center for Climate Change
Law’s comprehensive database tracking worldwide climate
change litigation, more than 750 lawsuits have been led
in the United States since 2016 seeking some kind of cli-
mate change-related relief across both of these categories.²
ese lawsuits run the gamut from federal statutory and
constitutional claims, to state public trust and common-
law actions, to Freedom of Information Act requests and
nancia l disclosure disputes.³
Early attempts to litigate the impacts of climate change
were met with signicant resistance from U.S. federal
courts. e sheer magnitude of the issue a nd its implications
for economic development has resulted in signicant reluc-
tance from the judiciary to seriously enga ge with the merits
of climate change litigation. Federa l court s have leaned
heavily on procedural barriers to keep climate change liti-
gation from gaining ground on their dockets. For exa mple,
displacement doctrine has allowed judges to duck the sci-
entically complex issues raised in this “rst wave” of cli-
mate change litigation, by punting them to the legislative
and executive branches to resolve with enforcement actions
under environmental legislation and regulation.
Article III standing has also been used to block eorts
to litigate climate change cla ims in federal court because
of the diculty in attributing a “fairly traceable” link
between a plainti ’s harm and a defendant’s conduct, given
the disparate nature of GHGs. is same issue would also
make it challenging to establish causation on the merits of
these claims, because the nature of climate change appears
to undermine the judicial capacity to congure causal
relationships. To date, federal courts’ inability to draw a
sucient causal link bet ween a plainti’s injury and a par-
ticular defendant’s emissions has eectively precluded the
judiciary from engaging with such cases, defeating “even
the most sympathetic of climate change plaintis.”
2. Sabin Center for Climate Change Law, Climate Change Litigation Data-
bases, http://climatecasechart.com/search/?fwp_ling_year=2016%2C2017
%2C2018%2C2019%2C2020%2C202 (last visited Mar. 1, 2022).
3. See id. Securities law and nancial regulation is a promising avenue for cli-
mate change litigation that has emerged over the past few years. e idea
is that shareholders can hold publicly traded companies liable for failure to
disclose nancial risks that arise from a changing climate, such as stranded
assets or transitional issues. See, e.g., Ramirez v. Exxon Mobil Corp., 334
F.3d 832 (N.D. Tex. 2018). Alternatively, shareholders can sue companies
for making false or misleading representations about “green” initiatives like
clean energy investments, emissions data, environmental compliance, sus-
tainability practices, and so on. See, e.g., Bentley v. Oatly Group AB, No.
1:21-cv-06485 (S.D.N.Y. July 30, 2021).
4. Lisa Benjamin, e Road to Paris Runs rough Delaware: Climate Change
Litigation and Directors’ Duties, 2020 U L. R. 313, 328-29 (2020).
5. American Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 41 ELR
20210 (2011) (holding that the Clean Air Act displaces any federal com-
mon-law right seeking the abatement of GHG emissions).
6. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 39 ELR
20236 (N.D. Cal. 2009).
7. Henry Weaver & Douglass A. Kysar, Courting Disaster: Climate Change and
the Adjudication of Catastrophe, 93 N D L. R. 295, 308 (2017).
8. Id. at 328.
Substantial eorts have been made to circumvent these
barriers over the past couple of decades. Some courts have
tried utilizing the framework of common-law doctrines
like public nuisance as a stand-in for the caus al relationship
required to satisfy Article III. Several states and munici-
palities have attempted to avoid federal issues altogether
by bringing innovative lawsuits against oending carbon-
major corporations under state common-law, public trust,
and consumer protection laws.¹ And there is a fast-grow-
ing trend in “second-wave” climate litigation to hone in
on corporate vulnerabilities by characterizing the eects
of climate change as a nancial risk—rather tha n a pub-
lic right or an environmental interest—in order to avoid
displacement by complex federal regulatory frameworks.¹¹
However, this contemporary litigation strategy has its
own set of limitations. Foremost, it fails to achieve “core
climate justice objectives such as attributing responsibil-
ity for the impacts of climate change a nd compensating its
victims,” because the emphasis is on forward-looking cor-
porate behavior rather than accountability for past wrong-
doing and ongoing harm.¹² At bottom, climate change
litigation in the United States is a muddy eld upon which
a lot of players on several teams are experimenting with a ll
kinds of dierent tactics a s they navigate the fast-changing
rules of a high-stakes game.
A. Standing
Among the landmarks that serve to “identify t hose dis-
putes which are appropriately resolved through the judi-
cial process” is the doctrine of standing.¹³ Stated generally,
standing is a constitutional prerequisite that require s a pro-
spective plainti to have suered a cognizable injury, fairly
traceable to the defendant’s conduct, that is redressable by
a favorable judgment from the court. Modern standing
doctrine can be distilled to a three-part test:
[T]o satisf y Article III ’s standing requirements, a plain-
ti must show (1)it has suered an injur y in fact that is
9. e U.S. Court of Appeals for the Second Circuit accepted as much in
Connecticut v. American Electric Power, Co., 582 F.3d 309, 39 ELR 20215
(2d Cir. 2009), arguing that the traceability analysis in climate change cases
could use “the standard by which a public nuisance action imposes liability
on contributors to an indivisible harm.” Id. at 346. But the U.S. Supreme
Court overruled on grounds that federal common law was displaced. Ameri-
can Elec. Power Co., 564 U.S. 410.
10. See, e.g., City & County of Honolulu v. Sunoco LP, No. CCV-20-380 (Haw.
Cir. Ct. led Mar. 9, 2020) (alleging climate-related harms to municipal
infrastructure under state common law); Held v. Montana, No. CDV-2020-
307 (Mont. Dist. Ct. led Mar. 13, 2020) (alleging constitutional violations
of the public trust for climate-related injuries); Massachusetts v. ExxonMo-
bil Corp., 462 F. Supp. 3d 31 (D. Mass. 2020) (alleging that Exxon fraudu-
lently concealed and misrepresented to investors and consumers about the
risks of rising GHG emissions).
11. Benjamin, supra note 4.
12. Anita Foerster, Climate Justice and Corporations, 30 K L.J. 305, 318-19
(2019) (moreover, the tools of corporate law are limited by their focus on
performance, value, and shareholder interests; while climate-harmful activi-
ties remain protable in the short term, these tools will be ill-suited to com-
pel corporate sustainability).
13. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 22 ELR 20913 (1992)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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