A review of domestic climate change-related lawsuits in the United States over a 26-year period found that pro-regulation litigants more often won lawsuits over renewable energy and energy efficiency and more often lost suits over air quality and coal-fired power plants.
“This research shows the importance of the judiciary in addressing climate change, especially in terms of the trajectory of energy development in the United States,” lead author Sabrina McCormick, Ph.D., M.A., an associate professor of environmental and occupational health at George Washington University’s Milken Institute School of Public Health said in an interview Tuesday.
“This first-of-a-kind study outlines the types of climate change lawsuits that are more likely to win or lose, and why,” she said.
The study comes as the Trump administration on Tuesday revealed the details of its proposed new Environmental Protection Agency rule rolling back Obama-administration regulations limiting greenhouse gas emissions from coal-burning power plants.
Researchers at George Washington University in Washington, D.C., and New York University built and analyzed a database of 873 climate change-related lawsuits from 1990 through 2016, and conducted 78 in-depth interviews with litigants who were scientists, lawyers and advocates about the legal strategies and the evidence they used.
The review found the majority of lawsuits were filed over air quality concerns and coal-fired power plants by litigants seeking more regulation to curb emissions, but that many of those lawsuits failed. By contrast, the courts favored pro-regulation litigants by a ratio of 2.6 to 1 where the lawsuits concerned energy efficiency or renewable energy, McCormick said.
The study was published in the peer-reviewed journal Nature Climate Change in its August 2018 issue published on Monday. The authors of the study, titled “Strategies in and outcomes of climate change litigation in the United States,” were McCormick, Robert L. Glicksman, Maurice C. Shapiro Professor of Environmental Law at the GWU Law School; Samuel J. Simmens; LeRoy Paddock of GWU Law School; Daniel Kim of the Trachtenberg School of Public Policy & Public Administration at GWU and Brittany Wited, program assistant at the New York University School of Law.
According to the study, “pro-regulatory plaintiffs do not always take an approach to litigation that is most effective, at least as defined by winning cases. Environmental groups, other community groups and government plaintiffs focused largely on CFPP (Coal-Fired Power Plants) and air cases until 2009, even though biodiversity, renewable energy and energy efficiency cases have higher win rates,” the study said. “Anti-regulatory plaintiffs are more effective in their alignment of goals and strategies, as they focused the majority of their time on air and CFPP cases, and had higher overall success rates,” it said.
In interviews, some lawyers said that, even if the lawsuits lost, they served to raise public awareness about climate change. ”Even in instances where cases are lost, bringing a case can be valuable to draw public attention to an issue,” McCormick said.