Washington and state and local governments are slow to act.
Your local courthouse may be your best hope from government.


You’ve probably heard about the twenty-one kids who have brought climate protection litigation against the US government. They claim its failure to act on climate change violates their generation’s constitutional rights to life, liberty, and property. One of the plaintiffs, a high school junior in Fairbanks, Alaska, told the National Geographic, “I can’t deal with the idea that what my parents and I have experienced will not exist for my children. I am a winter person. I won’t sit idly by and watch winter vanish.” Another, a 19-year-old college student, points out, “We have little or no representation in the government. Yet the effects of climate change will affect us more than anyone else.”

Lawsuits against governments growing

We read about Exxon (and its former CEO Rex Tillerson) being sued for deceiving investors and the public about the costs of climate change. And there are many other court cases against fossil fuel companies. But ‘climate liability‘ victories against governments may prove to be easier and more helpful in the short run. The kids’ lawsuit is certainly the best-known action trying to force government and industry to protect Americans. But there are many more. This summer a growing number of attorneys general sued the EPA over blocking carbon emission standards. The Sabin Center for Climate Change Law tracks other environmental legal actions by state AGs against various levels of governments. Many call for fighting the causes of global warming (greenhouse gas emissions). But a growing number seek help against its local effects (drought, stormwater pollution, flooding, etc.).

Can we rely on the courts?

Asking judges to protect us against the effects of climate change has several advantages over relying on the ballot box or pressure groups. First, courts are more fact-driven than politicians or the legislatures and bureaucracies they control. Second, while bureaucracies work slowly, change can come overnight based on a single high-level court decision. Other courts then treat that as a precedent.

There are two big precedents that need to be established. First, there must be increasing certainty that climate change is contributing to natural disaster costs. Fortunately, this is developing from what’s called attribution analysis. It’s a fast-moving scientific field that will eventually let extreme weather victims file climate protection litigation on grounds that damages they sustained were foreseeable and preventable. Second, a safe and clean environment is not yet fully established as a human right which must be protected by our governments. However, progress is being made in some states and particularly in other countries. A Netherlands district court, for example, ordered the national government to take steps to seriously reduce greenhouse gases. This ruling was based on decisions by the Dutch Supreme Court, holding that government can be legally accountable if it fails to prevent foreseeable harms to its citizens.

Legal actions becoming more local

Most of us have a closer view of the costly effects of warming than of its worldwide causes. And we’re becoming more aware of how our local governments can protect us – or not. Consider the impact of these municipal decisions.

Postponing actions to prevent stormwater overflows that cause pollution and disease – not to mention big EPA fines.

Giving permits to rebuild flood-after-flood, encouraging repetitive infrastructure damage and future city disaster costs.

Zoning permissions that set the stage for expensive property repairs from predictable storms and sea level rise.

Delays in protecting city buildings, historic districts, and local infrastructure from flood and sea level rise. These lower the town’s attractiveness and raise future taxes.

And failure to include the effects of warming in a project’s environmental impact statement. This failure gives decision makers the chance to delay protective action.

As citizens understand these growing costs better – along with the realization that preventing them is much cheaper than coping with them – local governments are becoming natural lawsuit targets.

In Climate-Proof I describe how Farmers Insurance faced growing flood claims in the Chicago area in 2014. It filed nine class actions against nearly 200 towns in the area. It argued that local governments should have known rising temperatures would lead to heavier rains and done more to fortify their sewers and stormwater drains.  Such actions against local governments seem likely to get officials’ and voters’ attention, even if not all of them come to trial.

What damages are litigants facing?

One example: Marin and San Mateo counties and the city of Imperial Beach, CA have filed a suit against the oil companies. They blame them for the rising sea levels and estimate that local assets at risk, including San Francisco Airport, amount to $24 billion. For the people in those localities, that’s about $65,000 of costs per household over coming years. And the claims do not include costs from other effects of climate change such as drought, storm water increases, or flooding.

Could you benefit from climate protection litigation?

If, like most of America, lawmakers and bureaucrats are dragging their feet in building protections against the effects of climate change, look around for any legal actions underway.

Use your search engine and check out Our Children’s Trust to see if there is any climate protection litigation going on in your state. Ask the plaintiff and any friends of the court how you can support them. If there’s a way to help, enlist friends and neighbors too. You may find that a few hours supporting a climate-change lawsuit is more effective than days of organizing, protesting, and lobbying lawmakers and officials.

If you discover that no court actions are being taken in your state . . . well, you might add that to your list of reasons to move. Your area may simply not have the citizen attitudes needed to preserve your assets and lifestyle. A more climate-conscious locality may protect you and your family far better than your current hometown.