Sue Today, Live Tomorrow: The Role of Lawsuits in Fighting Climate Change

Historically, climate activists have had little faith in legal proceedings and their potential for fighting climate change. However, in past years, this perception has begun to give way in light of the possibility that polluters can be held accountable for their actions.

As children, we are often told to take responsibility for our actions. We were told that by recognizing that our actions had consequences, we could learn to do better in future. Today, we continue to repeat this lesson to young ones in hopes that it will help them grow into thoughtful individuals. However, this principle often does not translate to the global stage of affairs and particularly to issues surrounding climate change. In many instances, this practice persists due to the manipulation tactics in legal proceedings.

As The Guardian describes, large polluters such as fossil fuel companies pay innumerable sums of money to law firms to avoid accountability and “block regulatory reforms that could help avert [the] crisis.” This is only one example of how legal proceedings have been used to benefit those who seek to lose in sustainable climate futures. Even when governments hold polluters responsible, the consequences are often disproportionate to the damage caused. For example, an Environmental Working Group discovered that although industries are responsible for the pollution of at least 54 different water supplies in the state of Ohio, they were only made to contribute to the decontamination of 3. More often than not, polluters are not made responsible. The documentary There’s Something in The Water by Elliot Page and Ian Daniel highlights manifestations of the problem by telling the stories of impacted minority populations. In the documentary, Page visits Nova Scotian communities that have been victims of environmental racism, such as the predominantly black community in Shelburne and the Mi'kmaq community near Boat Harbour, Pictou County. In both cases, these communities had to fight industry representatives and government officials for years before they could see any accountability for the pollution of their lands.

The term “Polluter Privilege” characterizes how the voice of polluters often drowns out the voices of those impacted by the polluter’s actions. Polluter Privilege can be aptly applied to legal settings that preemptively advantage polluters through their use of expansive legal representatives. Polluter corporations afford these representatives through profits amassed by the polluting actions they aim to protect. These representatives place delays and procedural hurdles for their opponents, making the case nearly impossible to win. In contrast, those who are impacted by industry-driven pollution and climate change—especially those coming from marginalized communities—often have limited access to funds and sufficient legal representation. In this way, the legal system disadvantages those who are wronged by polluters and seek a more just climate future. 

However, in recent years, there has been an increase in lawsuits against polluters. These lawsuits are not only successful but promote an environment in which more climate cases are being brought to the forefront of legal proceedings. As the 2021 Climate Neutrality Forum explains, “the cumulative number of climate change-related cases has more than doubled since 2015,” thus indicating a snowball effect. Many of the cases brought forth focus on holding governmental bodies responsible for their insufficient climate policies. In a 2015 Dutch case, the judges ruled that the Netherlands’ government’s cutback of 17% on greenhouse gas emissions was insufficient and ordered for an increase to 25%. A similar ruling took place in Germany. These lawsuits also extend to corporations like car-makers and petrol companies, forcing them to abide by governmental policies. In this way, these legal actions work to disrupt political stasis in terms of climate initiatives. 

While activist organizations file many lawsuits, minority groups also take part in the practice by filing suits concerning cases of harmful polluting activities linked to environmental racism. These cases include the Wayúu Indigenous community versus the Colombian Ministry of Environment and the Zapoteca Indigenous community versus Electricité de France (EDF). Each suit describes the infringement of informed consent and the violation of human rights regarding human health and environmental health. Lawsuits aim to stop the continuation of harmful activities like coal mining in the case of the Wayúu, along with seeking compensation like in the case of the Zapoteca Indigenous community. 

The increase in climate lawsuits causes firms to look inward and examine their role in fighting climate change. Organizations like Green Legal Impact now offer specialized training to young lawyers to provide them with useful skills when fighting climate-related cases. Another group called Law Students for Climate Accountability is urging law firms to pledge that they will not continue to take on fossil fuel industry work. Law charity ClientEarth has also been working to shift governmental attitudes toward greener futures and has yielded encouraging responses. These movements suggest that many legal representatives are reflecting on their role and responsibility amid the climate crisis.

Legal climate action has provided an expansive image of the multifaceted forms that climate change and polluting activities can take on, as well as the negative impacts. Legal proceedings show us the problem and highlight part of the solution. Lawsuits and other legal movements facilitate the process of holding polluters accountable for their actions, compensate those affected and work to establish more sustainable policies and modes of operation for the future.