Novel Approaches to Expect in Inevitable U.S. Climate Litigation

Milieudefensie et al invoke the right to life and the right to respect for private and family life of Dutch residents and the inhabitants of the Wadden region. These rights are enshrined in Articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Articles 6 and 17 of the International Covenant on Civil and Political Rights (ICCPR). . . .

The UN Human Rights Committee, which decides on violations of the ICCPR, determined the same as regards Articles 6 and 17 ICCPR. In a case on the right to life as enshrined in Article 6 ICCPR, the UN Human Rights Committee considered as follows:

“Furthermore, the Committee recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.”

In 2019, the UN Special Rapporteur on Human Rights concluded the following:

“There is now global agreement that human rights norms apply to the full spectrum of environmental issues, including climate change.”

RDS’ argument that the human rights invoked by Milieudefensie et al. offer no protection against dangerous climate change therefore does not hold.

The serious and irreversible consequences of dangerous climate change in the Netherlands and the Wadden region, as discussed under (4.4. (3)), pose a threat to the human rights of Dutch residents and the inhabitants of the Wadden region.²

Human rights were only one factor considered by the court in its interpretation of the nature of RDS’s duty of care, but that consideration was grounded in the principles enshrined in the ICCPR.

The companion treaty to the ICCPR is the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR). Rather than the broad categories of the right to life and right to private and family rights of the ICCPR that arguably may be affected by climate change, the ICESCR contains specific rights to which a much clearer line to climate impacts may be drawn: the rights to health, food, water, and sanitation. The United Nations Committee on Economic, Social and Cultural Rights has explained that the state parties are under an obligation to respect, protect, and fulfil all human rights for all, and that such duties are owed to their own populations as well as those outside their territories. According to the Committee, “a failure to prevent foreseeable human rights harm caused by climate change, or a failure to mobilize the maximum available resources in an effort to do so, could constitute a breach of this obligation.”³

The decision of the Dutch court makes no mention of the ICESCR, to which the Netherlands is a state party, having ratified the treaty in 1978, and it does not feature in the court’s recitation of the claims and arguments being made by Milieudefensie et al. The decision not to rely upon the rights of the ICESCR may have been strategic because historically the principles protected by that document have been treated with skepticism by Western nations, not least because to protect such rights often depends upon the positive expenditure of resources, rather than the government refraining from acting against its citizens’ civil and political rights. Further, the Milieudefensie decision specifically rejects that any duty was owed to any populace outside of the Netherlands; RDS’s duty of care was limited to Dutch residents and the inhabitants of the Wadden region, and not to current and future generations of the world’s population.⁴ Ultimately, it appears that while the ICESCR contains a promise of particular and well-defined rights that may be directly impacted by climate change, trying to use those specific economic and social rights as a cultural context within which to place the obligations of individual actors is a step too far. It was also unnecessary for the court to rely on these rights because the Supreme Court of the Netherlands had already determined that climate change may lead to a number of risks including sea level rise, heat stress, deteriorated air quality, increasing spread of infectious diseases, excessive rainfall, and disruption of food production and drinking water supply, all of which may lead to hundreds of thousands of victims. The Supreme Court held that even though these risks may only become apparent at some point in the future, Articles 2 and 8 of the ECHR could offer protection against these threats now.⁵

The court spent a substantial portion of its opinion discussing human rights obligations, all of which stemmed from the right to life and right to respect for private and family life, and cited to specific interpretations of the ICCPR in explaining why RDS owed a duty of care to Dutch residents to reduce emissions.

One question, therefore, for interested parties in the United States is whether such arguments can gain traction in its courts.

Enforcing International Human Rights in U.S. Courts

The Dutch court in Milieudefensie acknowledged that human rights instruments such as the ICCPR did not confer a private right action against a nonstate actor. Rather, the existence of those rights provided context for assessing RDS’s obligations under Dutch delictual or tort law. When considering whether such rights might be persuasive in litigation against energy companies or other private actors in U.S. courts, the presence of such rights treaties within the legal hierarchy of the United States should be reviewed.

The United States is a state party to the ICCPR. It became a signatory in 1977, and the treaty was ratified in 1992. Under the U.S. Constitution, that ought to make the ICCPR part of “the supreme Law of the Land.”⁶ However, through the ratification process, the United States made certain reservations, understandings, and declarations that limited the adoption of certain provisions and principles and expressly rendered the Covenant nonself-executing, requiring implementing legislation in order to have legal effect in the United States. No such legislation has been made, and, therefore, there is no method to enforce these rights in U.S. courts.⁷ The Carter administration also signed the ICECSR in 1977; that Covenant has never been ratified by the United States.

Articles 6 and 17 of the ICCPR, therefore, do not form part of U.S. law. There have been occasions in the past in which U.S. courts have acknowledged with approval the existence of human rights as expressed in the ICCPR. For example, in Roper v. Simmons⁸ the U.S. Supreme Court, when considering whether capital punishment could be applied to juvenile offenders, referred to the ICCPR prohibition on capital punishment for those under eighteen years old at the time of their offense.⁹

The closest the Supreme Court has come to a climate change suit is the recent writ taken in BP P.L.C. v. Mayor of Baltimore¹⁰ in which Baltimore sued various energy companies in state court in Maryland, alleging that the defendants concealed environmental impacts while promoting fossil fuels. The Court did not take up the merits of the case, and instead the question before it was purely an issue of civil procedure relating to whether a court of appeals can review any issue in a district court order remanding a case removed to federal court under the federal officer removal statute or the civil rights removal statute.

While it remains to be seen how the judicial philosophies of the newer justices on the Supreme Court might impact their decisions on issues involving claims of rights violations relating to climate change, given the Court’s current constitution, it seems unlikely that an attempt to use ICCPR rights as a framework for finding liability for climate change impacts would be successful. Nor does it appear likely that the current Supreme Court will find any correlating rights under the Ninth Amendment and its right to privacy as interpreted by Supreme Court justices in the past.

Right to a Stable Climate: Constitutional claims

However, litigants are making the case that other rights enshrined in the U.S. Constitution are under threat by climate change, and some courts have been sympathetic to the merits of those claims, if not to their ability to enforce them. In Juliana v. United States,¹¹ the plaintiffs, a group of twenty-one young citizens, brought their claims as the “representatives of future generations.” The plaintiffs claimed that the government had violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to “a climate system capable of sustaining human life,” an equal protection claim under the Fifth Amendment, rights under the Ninth Amendment, and the public trust doctrine. The allegation was that the violations had resulted in psychological harm, impairment to recreational interests, exacerbation of medical conditions, and damage to property. The remedy sought by the plaintiffs was an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO₂.”¹²

The Ninth Circuit accepted that the plaintiffs had presented evidence that climate change is occurring at an increasingly rapid pace as a result of fossil fuel combustion and that unchecked the destabilizing climate will have severe negative consequences for humans. The court also found that the evidence was that the federal government has known of the problem for decades but has continued to affirmatively promote the use of fossil fuels in various ways.¹³ Significantly, the Ninth Circuit affirmed the district court’s decision that the plaintiffs had standing to bring their claims, finding that at least some of the plaintiffs could point to particularized injuries and that even though climate change affects everyone, it does not matter because the plaintiffs had alleged concrete and personal injuries.¹⁴ Also, importantly, a sufficient causal link was held to have been established between fossil fuel carbon emissions and the damage alleged, and the actions of third parties did not negate there being at least a genuine factual dispute about whether the government’s policies were a “substantial factor” in causing plaintiff’s injuries.¹⁵

Unfortunately, the court did not deal with the question of whether the right to a stable climate exists in the Constitution because it ultimately found that the claim had to fail on the basis that the court could not provide redress.¹⁶ A federal court cannot order the federal government to promulgate a plan and then supervise and enforce its implementation absent standards to guide and the exercise of such authority; the separation of powers considerations prevented the court from providing the remedy sought by the plaintiffs. As such, the claims failed.¹⁷ The court did, however, assume a “broad constitutional right” to a “climate system capable of sustaining human life.”¹⁸ In an extensive dissent, however, Judge Staton found that plaintiffs were seeking to enforce “the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.”¹⁹ While acknowledging that “the perpetuity principle” did not, in itself, amount to a right to live in a healthy nonpolluted environment, the dissent found that climate change is an existential threat to the United States for which there is redress under the Constitution.²⁰

At the state level, the issue of whether there is an enforceable human right to a stable climate system has been considered by the courts of Washington State. Similarly to Juliana, the plaintiffs in Aji P. v. State of Washington²¹ are young people, and they allege that the State of Washington and various state agencies have injured them by knowingly creating, operating, and maintaining a fossil fuel–based energy and transportation system, which would result in greenhouse gas (GHG) emissions and “dangerous climate change.”²² They sought a declaration that they have “fundamental and inalienable constitutional rights to life, liberty, property, equal protection, and a healthful and pleasant environment, which includes a stable climate system that sustains human life and liberty.”²³ The plaintiffs’ specific request was an order that the state develop and submit to the court an enforceable state climate recovery plan over which the court would retain jurisdiction to approve, monitor, and enforce compliance.²⁴

As with the Ninth Circuit in Juliana, the Washington appellate court agreed that GHG emissions inflict extreme harm that causes a “very serious threat to the future stability of our environment.”²⁵ Further, the court mirrored the Dutch court in Milieudefensie, citing the Intergovernmental Panel on Climate Change (IPCC) with regard to the threats that climate change presents, specifically noting a joint statement of UN human rights bodies that found that climate change threatens the right to life, the right to adequate food, the right to adequate housing, the right to health, the right to water, and cultural rights. It referred to the joint statement regarding an increased risk of harm to “women, children, persons with disabilities, indigenous peoples and persons living in rural areas.”²⁶ The Washington court also arguably went further than the Ninth Circuit in that it expressly opined that “the right to a stable environment should be fundamental.”²⁷ Ultimately, however, like the Ninth Circuit, the appellate court found that the separation of powers rendered the court unable to act because the claims “inevitably involve resolution of questions reserved for the legislative and executive branches of government[.]”²⁸ The decision closely resembles the considerations that led the Ninth Circuit to the same conclusion, and the court cited the Juliana decision when discussing its inability to provide redress.²⁹

The question of whether there is a right to a stable climate remains open. Undoubtedly, future plaintiffs will attempt to find new ways in which to interpret the U.S. Constitution so such a right is recognized or they will continue to press the claims of those who have already made them. And, while it seems unlikely that the international human rights upon which the Milieudefensie claimants successfully relied will form the basis for an equally successful claim in the U.S. courts in the near future, the willingness of the court in Aji P. to acknowledge those rights suggests that the door may not entirely be closed on using them as at least context for a future constitutional claim.

International Tort Litigants in U.S. Courts

Another potential avenue for litigation against corporations and others alleged to be responsible for climate impacts could be cases brought by foreign plaintiffs in the U.S. courts for alleged climate impacts that occur outside the United States.

The Alien Tort Statute (ATS) or Alien Tort Claims Act³⁰ is a short statute that has generated much interesting and controversial litigation. It provides, in its entirety, that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The statute was largely ignored for much of its existence until the mid-1990s, at which time more and more foreign litigants began using it to seek redress in the U.S. courts for wrongdoing that occurred in other countries. While some cases concern tortious conduct by foreign governments or government actors, others have been brought against private companies for violations of international law. For example, in Abdullahi v. Pfizer, Inc.³¹ it was held that jurisdiction existed over the claims of Nigerian children against a pharmaceutical company alleged to have improperly engaged in involuntary medical experimentation because international law prohibited nonconsensual testing on humans.

As discussed above, international law has recognized certain rights that may be impacted by climate change. It is therefore conceivable that a foreign plaintiff could argue that the ATS permits him to sue in U.S. courts an entity he claims has violated those rights in his home country. The traditional U.S. tort remedy of monetary compensation is unlikely to achieve the goals of those who have attempted to use the courts to force entities to address climate change to date, but it nonetheless presents a potential method—if not in a judicial award then in a negotiated settlement—of obtaining some type of concession or action from private entities.

However, successive Supreme Court decisions have narrowed the circumstances in which such suits may be brought, and the recent Nestle USA, Inc. v. Doe³² appears to have made successfully claiming U.S. jurisdiction over such a tort claim more difficult. The plaintiffs in Nestle allege that, as children from Mali, they were trafficked into Ivory Coast as child slaves to produce cocoa. They sued two U.S.-based companies under the ATS, claiming that their purchasing cocoa from farms in Ivory Coast and providing those farms with technical and financial resources aids and abets child slavery. Although the suits alleged “general corporate activity” within the United States, including major operational decisions, the majority of the allegedly tortious activity occurred in Ivory Coast. As such, the suits sought extraterritorial regulation of conduct, which was impermissible. The Supreme Court determined that a generalized claim of corporate decision-making in the United States was insufficient to show the requisite connection to the United States.

Nestle has been remanded for further proceedings, but the Supreme Court has made it clear that unless a plaintiff can specifically allege facts showing wrongdoing within the United States, the courts here have no jurisdiction to hear a case under the ATS. While that does not preclude lawsuits relating to climate change, it does mean that any plaintiffs will have to clear the hurdle of being required to allege exactly what actions were taken within the United States that led to the alleged climate impacts abroad.

Litigating to Preclude Government Action on Climate Change

A great deal of attention has been paid to suits, such as those discussed above, seeking to obtain a judgment that would reduce behavior that may lead to climate impacts, but another type of litigation that implicates climate change is lawsuits brought by energy companies against governments under the Energy Charter Treaty (ECT). The ECT was formed in 1994 with the purpose of protecting energy investments in states with legal systems that did not offer certainty, in particular where there was a risk of state intervention in private oil and mineral businesses operating within that state. It forms a central part of a network of similar treaties that were entered into in the late 1980s and ’90s. These treaties permit foreign investors in the energy sector to bring suits against states in international tribunals, without the need to exhaust domestic legal remedies in the country in which the investment is located.

In 2017, UK oil company Rockhopper Exploration, which had a license to drill for oil off Italy’s coast, brought an action against Italy under the investor-state dispute settlement mechanism of the ECT (Italy withdrew from the ECT in 2016, but members are subject to the treaty for twenty years after withdrawal).³³ After issuing the license to Rockhopper in 2014, Italy imposed a ban on oil and gas projects within 12 nautical miles of the Italian coast, which included the location of Rockhopper’s operation. Rockhopper has sued Italy, claiming a reported $275 million in damages based on loss of expected future profits.³⁴

According to the Sabin Center for Climate Change Law at Columbia Law School, there are currently ten ECT cases pending around the world, six of which are pending before the International Centre for Settlement of Investment Disputes, including Rockhopper. The concern among environmentalists is that the very existence of this mechanism for energy companies to sue governments over policy changes may have a chilling effect on attempts by governments with heavy inward investment in the energy sector to address climate change.

One does not have to look to international tribunals, however, to see efforts to challenge governmental policy that seeks to reduce climate change impacts. President Joseph Biden’s administration has issued executive orders relating to climate change and related activities.³⁵ Executive Order 14008, which has the stated purpose of “plac[ing] the climate crisis at the forefront of this Nation’s foreign policy and national security planning,” including rejoining the Paris Agreement,³⁶ imposes a moratorium on new oil and natural gas leases on public lands or in offshore waters pending completion of comprehensive review and reconsideration of federal oil and gas leasing and practices.³⁷

In a lawsuit filed on March 24, 2021, in the U.S. District Court for the Western District of Louisiana, a group of states with heavy involvement in the energy sector, led by Louisiana, sued the federal government, seeking an order vacating any decisions made under the moratorium and enjoining any further action under the EO regarding oil and gas leasing programs.³⁸ A number of environmental groups sought to intervene as defendants in the action “to protect their and their members’ interests in minimizing harms to the environment and climate from oil and gas leasing on federal lands and in federal waters.”³⁹ That motion to intervene was denied on the basis that the suit was not about implementing an approach on federal lands and in federal waters that is “sufficiently protective of the climate, environment or public health” or whether to end new leasing in those areas permanently. The question was solely about the legality of the moratorium placed on leasing by the government and therefore the intervenors and the government do not have the same ultimate objective. “This specific lawsuit is about constitutional and statutory authority, not climate policy.”⁴⁰ Despite the framing of the issues as one about executive power, ultimately the question of oil and gas leasing by the federal government is a question related to governmental climate change policy. Lawsuits such as these, just as those under the ECT, may become a mechanism by which to challenge certain actions of the executive branch seeking to address climate change. Louisiana v. Biden is still pending, but the district court has issued a preliminary injunction enjoining and restraining the government agencies involved inter alia from implementing the pause on new oil and natural gas leases on public lands or in offshore waters as set forth in the EO while the proceedings continue.⁴¹

The array of litigation that is occurring both in the United States and abroad suggest that this is only the beginning of climate change litigation. Interested parties can expect that the legal challenges coming from all sides, involving both the private and public sectors, will continue to become more sophisticated and numerous as we move closer to the various deadlines that have been set out for reduction of emissions and other actions designed to attempt to tackle climate change.

Endnotes

1. Milieudefensie v Royal Dutch Shell, C/09/571932 /HA ZA 19-379, Hague Dist. Ct., 26 May 2021; ECLI:NL:RBDHA:2021:5339 (Neth.).

2. Id. paras. 4.4.9, 4.4.10 (internal citations omitted).

3. Climate Change and the International Covenant on Economic, Social and Cultural Rights, Statement of the Committee on Economic, Social and Cultural Rights (Oct. 8, 2018).

4. Milieudefensie, paras. 4.2.3, 4.2.4.

5. State of the Netherlands v. Urgenda, 19/00135, Sup. Ct. of the Netherlands, 20 Dec. 2019, ECLI:NL:HR:2019:2006.

6. U.S. Const. art. VI, cl. 2.

7. For a discussion of the status of the ICCPR in U.S. law and the history of how the United States became a State party, see David Kaye, State Execution of the International Covenant on Civil and Political Rights, 3 U.C. Irvine L. Rev. 95 (2013).

8. 543 U.S. 551 (2005).

9. Id. at 576; see Kaye, supra note 7 for further examples of the Supreme Court referring to international human rights principles.

10. 141 S. Ct. 1532 (2021).

11. 947 F.3d 1159 (9^th Cir. 2020).

12. Id. at 1164–65.

13. Id. at 1166–1167.

14. Id. at 1168.

15. Id. at 1169.

16. The district court had found such a right; however, as the Ninth Circuit noted, at least one other district court had found the opposite. Clean Air Council v. United States, 362 F. Supp. 3d 237, 250–253 (E.D. Pa. 2019).

17. Juliana, 947 F.3d at 1171, et seq. The Ninth Circuit denied the petitioners’ request for an en banc hearing by the full court. Juliana v. United States, 986 F. 3d 1295 (9th Cir. 2021).

18. Juliana, 947 F.3d at 1164.

19. Id. at 1175, et seq.

20. Id. at 1180.

21. 16 Wn. App. 2d 177 (Wash. Ct. App. 2021).

22. Id. at 183.

23. Id. at 185–186

24. Id. at 183.

25. Id.

26. Id. at 184.

27. Id.

28. Id. at 187.

29. The petitioners have sought discretionary review from the Supreme Court of the State of Washington, which application is still pending at the time of writing. Petition for Discretionary Review, Aji P. v. State of Washington (Wash., filed Mar. 10, 2021) (No. 80007-8-I).

30. 28 U.S.C. § 1350.

31. 562 F.3d 163 (2d Cir. 2009).

32. 141 S. Ct. 1931 (2021).

33. Rockhopper Exploration Plc v. Italian Republic, ICSID Case No. ARB/17/14.

34. Josephine Moulds, Outrage as Italy Faces Multimillion Pound Damages to UK Oil Firm, Guardian, July 25, 2021.

35. See, e.g., Exec. Order No. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 20, 2021), and Exec. Order No. 14008, On Tackling the Climate Crisis at home and Abroad, 86 Fed. Reg. 7619 (Jan. 27, 2021).

36. Exec. Order No. 14008, sec. 102.

37. Id. sec. 208.

38. Louisiana v. Biden, No. 2:21-00778, W.D. La. (filed Mar. 24, 2021).

39. Rec. Doc. 73-1.

40. Rec. Doc. 111. The court did invite conservation groups to request amicus curiae status and file briefs addressing the constitutional and statutory issues.

41. Rec. Doc. 139-1, June 15, 2021.