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Columbia Energy Exchange

Climate Change in Court: New Trends and Legal Grounds


Michael B. Gerrard

Andrew Sabin Professor of Professional Practice, Director, Center for Climate Change Law, Columbia Law School


Michael Gerrard [00:00:03] Almost no or no national governments are doing enough to reduce greenhouse gas emissions. And so people are resort are resorting to the courts. No one are just about no one is saying that’s the ideal solution. And we’d rather have the national government say that. The failure, though, sent many people to court.


Bill Loveless [00:00:25] Around the world, activists are turning to the courts to hold major polluters accountable for climate change. This recently played out in the United States. In Montana, where young plaintiffs successfully presented scientific evidence that connects the state’s greenhouse gas emissions to environmental degradation. Many experts say the case Montana V held is another major development for climate litigation. Other cases playing out across the globe show the courts could be a way to reduce CO2 emissions in the private sector. So what are some of the other major legal cases aimed at fighting climate change? And how could they impact the push to reduce global emissions? This is Columbia Energy Exchange, a weekly podcast from the Center on Global Energy Policy at Columbia University. I’m Bill Loveless. Today on the show, Michael Gerrard. Michael is the founder and faculty director of Columbia’s Saban Center for Climate Change Law, where he writes and teaches courses on environmental law, climate change law and energy regulation. He was the chair of the Faculty of Columbia University’s Earth Institute from 2015 to 2018, before joining the university in 2009. Michael practiced environmental law in New York for three decades. The Saban Center maintains a database that tracks climate change litigation around the world. As of December 31st, 2022, the database included 2180 cases. So I talked with Michael about his work at the Saban Center and the movement toward global climate change litigation. We discussed specific cases in the United States, Europe and abroad, and the emerging role of the courts in reducing greenhouse gas emissions. I hope you enjoy our conversation. Michael Gerrard, it’s good to have you back on Colombia Energy Exchange.


Michael Gerrard [00:02:30] Good to be with you again, Bill.


Bill Loveless [00:02:33] Well, you know, I can’t think of anyone better to talk to when it comes to discussing climate law. And there certainly have been a number of developments recently, as there always seem to be. You know, let’s start this summer. We had the decision in Montana where a state court ruled in favor of young people who had accused state officials of violating their constitutional rights by promoting fossil fuels. Some call it a groundbreaking legal decision. Others caution that we shouldn’t make too much of it. What do you think?


Michael Gerrard [00:03:06] It’s groundbreaking in a number of ways, but not every possible way. It’s only the second time there’s been an actual trial on climate science with climate scientists on the stand under oath, subject to cross examination. And the court fully believed what the climate science scientists were telling her, that the human activities are causing climate change mostly from fossil fuels, and that it’s causing real damage, that it’s going to get worse. The only prior time was this about 15 years ago in a small case. So this was pathbreaking in that sense. It was also the first time that we’ve had a court at the end of a trial say that there’s a constitutional right to a stable climate system under a constitution that sets forth a right to a clean environment. Montana, in its constitution, says everyone has a right to a clean and healthful environment. And here, for the first time, the court said that applies to the climate. And it gives these young people a right to a stable climate system.


Bill Loveless [00:04:14] Yeah, and standing is an important consideration here, right?


Michael Gerrard [00:04:18] That’s right. The young plaintiffs, you know, go through it when the suit was filed and we’re all between the ages of six and 18. Several of them took the stand and talked about how they personally were adversely affected by climate change, whether it’s health or recreational activities or the ability to hunt and fish. And so they showed that they were directly affected. And that was important in establishing that they had standing to sue.


Bill Loveless [00:04:46] The case, of course, was held. The Montana, including 16 plaintiffs who are represented by the legal nonprofit, are Children’s Trust. The Montana case didn’t set a federal precedent, but many environmental lawyers and activists say they hope for a ripple effect from it. And states like Massachusetts, New York, in Pennsylvania, which have similar provisions in their constitutions and laws. Is that is that right, Michael?


Michael Gerrard [00:05:14] Yeah. There are several states that that have stated environmental provisions in the Constitution of Massachusetts. Now, one of them by Pennsylvania, Ohio, I’m sorry, Hawaii. Very recently, New York, there is a trial coming up next year in Hawaii, which obviously has just suffered a terrible climate related catastrophe. So in the states that have environmental clauses in their constitutions, I think that it will certainly be something the courts will look to is not binding on anybody else. You know, other than this one court in Montana. But it is inspirational. And it may also increase the the campaign to adopt environmental provisions in the constitutions of some other states.


Bill Loveless [00:06:00] Can any comparisons be made between this Montana case and any cases pending in federal courts?


Michael Gerrard [00:06:07] Well, there’s a famous case pending in federal court in Oregon called the Juliana case, which was also brought by young people and also from our children’s trust. But Oregon does not have a constitutional provision in its constitution, nor does the U.S.. Federal Constitution. The trial court in the Juliana case said that maybe there is a federal constitutional right to a clean environment. And she is going to trial. But it went up on appeal, went back and forth. But ultimately, the ninth Circuit Court of Appeals, by a vote of 2 to 1, dismissed the case. The Court of appeals agreed with the plaintiffs from the trial court that climate change is is happening at cost, is terrible. The impacts are getting worse. It’s mostly caused by fossil fuels, and the federal government played a major role in it. But they said that is not the job of the courts to fix it and that it really is up to Congress and the executive to address it. And even though they are clearly failing to act adequately, it is still not the role of the of the courts that that the plaintiffs were going to look for because their complaint has. A court to order the federal government to prepare and implement a plan essentially to phase out fossil fuels. And the court of Appeals, the 2 to 1 majority, said that’s that’s going too far. So now the plaintiffs have come back and moved to amend their complaint to just ask for a declaration of rights and not that kind of order. The Department of Justice is fighting that. So we’ll see where we’ll see where that takes us.


Bill Loveless [00:07:51] One to certainly watch going forward. Well, the Montana decision is certainly an interesting one. But let’s take a broader view of climate litigation. A recently released report from the U.N. Environment Program and the Saban Center for Climate Change Law reviews the state of climate litigation around the world. You’re certainly familiar with this report. Explain its significance to us.


Michael Gerrard [00:08:17] So the Saban Center maintains a database in which we try to have all of the climate lawsuit litigation around the world. And by latest count, it’s around 2300 climate lawsuits around the world. And which about 70% are in the U.S. The number continues to grow, and we’re seeing particular growth outside the United States, including cases in the global South. And we’re seeing in some of these cases in other countries, not in the U.S., but in other countries. The courts are saying that there is a right to a clean environment, either under the national constitutions or under human rights treaties that the countries have signed on to or under legal provisions. So we’re seeing in some countries decisions where the courts are telling their national governments that they have to do more. We saw that most prominently a few years ago in the Netherlands. But since then, there have been cases in in Germany, France, Mexico, Nepal, Colombia, Brazil. Quite a few countries are seeing their courts order their government to do more.


Bill Loveless [00:09:28] Well, I want to touch on some of those cases in a bit. But, you know, in reading through that report, I noted in the in the forward that Patricia Murphy, both the director of the law division of the U.N. Environment Program, says that climate litigation represents a frontier solution to change the dynamics of the fight to save the world from catastrophic climate change. She goes on to say that people are increasingly turning to the courts to combat the climate crisis and that governments and private sector entities are being increasingly challenged and held to account. I find that reference to it being a quote unquote frontier solution interesting. Is this still an option that in its early stages?


Michael Gerrard [00:10:10] Yeah. I mean, what we’ve seen is that almost no or no national governments are doing enough to reduce greenhouse gas emissions. And so people are resort are resorting to courts. No one are just about no one to say that’s the ideal solution. And we’d rather have the national government say that. And the failure had sent many people to court. We so far only had a handful of decisions that are requiring governments to do more, and none from the major most important emitting countries the U.S., China, unsurprisingly, India and so forth. So a lot more of this kind of litigation is coming down the pike. We’re still early in the development of it, although we do have 2300 lawsuits so far.


Bill Loveless [00:11:04] Yeah, quite a quite quite a number of them. And the report also observes that while the legal arguments and forums in which climate cases are brought vary greatly, the cases typically address similar key legal issues. What are some of those issues, Michael, and why do they matter?


Michael Gerrard [00:11:22] So in the first place, that’s referring just to the the most prominent cases, the cases that are seeking orders that government or companies do more. So a central issue is what is the proper role of the courts. A lot of these suits have been dismissed because the judges just felt that they didn’t have the mandate, much less the expertise to to issue that kind of order. But there are exceptions to their growing number of exceptions. Very few of the cases have gotten to the to the real merits of whether climate change is is happening and what is cancer. And in fact, it’s generally assumed and very rarely contested. Very few lawyers representing defendants have tried to take on the argument that this is all fake or it’s or it’s not so bad because they know that would be a losing argument, even in Montana. The state had planned to call a scientist who was not a climate denier, but sort of a climate minimizer are saying, Yeah, it’s happening, but it’s not so bad. And at the end of the day, they didn’t they didn’t call her. And maybe they felt that she wouldn’t have so well under cross-examination. So so the real fights for these cases have been on a legal issue, a separation of powers. What’s the right role for the courts?


Bill Loveless [00:12:52] And you see that evolved, that sort of discussion that’s taking place and these court rooms evolving from that position that’s we’ve seen so far.


Michael Gerrard [00:13:02] Each time there is a successful case, it gets cited in the subsequent cases. And so we have this growing body of of successful lawsuits, and we may see more of that.


Bill Loveless [00:13:15] Let’s talk about some significant rulings. You mentioned them briefly before. Among them was the decision by a Dutch court ordering Royal Dutch Shell to reduce its CO2 emissions associated with its products by 45% by from 2019 levels by 2030. That decision now subject to an appeal. Shook up the corporate world. Tell us about it.


Michael Gerrard [00:13:41] Yeah. So an NGO in the Netherlands called made a defense for you, which is? I’m not pronouncing it right, I’m sure, but it’s Dutch for defense, for the environment. I sued Royal Dutch Shell, and the trial court in The Hague said that the emissions from from Royal Dutch Shell led to damages that are a violation of human rights. And they ordered Shell to reduce its greenhouse gas emissions, as you said, a 45% by 2030. And from the very significant aspects of that first place, it’s the first time that any court has held a company actually legally responsible for climate change. And there are a bunch of lawsuits that are pending in the U.S. and a couple of elsewhere that I can talk about. But it’s the first one that actually got to that point. Secondly, it applies not only to Royal Dutch Shell and the Netherlands, but also all its subsidiaries globally. And most significantly, it applies to scope three emissions, you know, as you know, scope one of the direct emissions from the company. Scope two are the emissions attributable to mostly to the generation of the electricity it buys. And scope three is the supply chain here. The scope three emissions from Royal Dutch Shell are the emissions from everybody using their gasoline and other fuels that they make. So it goes down to the customers. This is really shaken up a lot of people. Shell, as you say, is appealing this. Meanwhile, they’re going forward rather aggressively with more oil exploration and development. So they’re certainly not working to cut back on and on their emissions. It is now before the intermediate appellate court in the Netherlands. Whoever loses that will no doubt go up to the Supreme Court of the Netherlands. But I think it’s worth pointing out that this these are the same courts that a few years ago issued the decisions and were very, very famous for Agenda Case, which was an earlier lawsuit brought by another NGO that led to an order that the government did to cause a reduction in the country’s greenhouse gas emissions. So the court system in the Netherlands is sympathetic to the two plaintiffs in climate cases, but we’ll see. We don’t know how they’re going to come out in the Shell case.


Bill Loveless [00:16:13] Yeah, and it goes without saying, the implications for major oil companies certainly are are tremendous. Right. If this decision were to stand.


Michael Gerrard [00:16:24] Absolutely. Because this is not just about disclosure. You know, California just passed a very important disclosure law that we can talk about if you want. But this this goes beyond disclosure. This is actually last year emissions. That’s a much bigger deal.


Bill Loveless [00:16:40] Yeah, Well, in the United States, cases have been brought by cities and states against fossil fuel companies asserting climate disinformation and misrepresentation of products, by and large. Where do those cases stand?


Michael Gerrard [00:16:56] So there are about 25 of those cases that have been brought around the United States. Just about all of them have been held for several years. And the question of whether they belong in federal court or in state court, the plaintiffs always want them to be in state court. The defendant oil companies all wanted to be in federal court. These cases were bouncing around. All the courts of appeals that looked at it decided that the cases ought to be in state court. The defendant. Oil companies tried to get in front of the U.S. Supreme Court to get them to reverse it because Supreme Court a couple of months ago refused to take the case. So these cases are now in state court. They’re facing previous motions to dismiss on a number of legal grounds. So it may be a while before they can move forward, but there are a lot pending. And and just two days before this taping. California filed a major new hospital law declines in state court in San Francisco.


Bill Loveless [00:18:03] Yeah, that one was against Exxon, Chevron and other oil giants. And, of course, the American Petroleum Institute. One of the defendants says Congress, not courts, should make policy. It’s sort of a point you raised before in terms of what is often the response of of oil companies and energy companies in these lawsuits.


Michael Gerrard [00:18:24] Yeah. And I think just about everybody agrees that Congress should do this. But the United States Congress has not passed a major new environmental law since 1990. It’s been more than 30 years. And they’re paralyzed by Partizan Division. They did pass the Inflation Reduction Act, of course, in 2022. But that’s mostly about throwing money at the issue, not about adopting new regulations. So so, yes, ideally Congress should act, but it isn’t. And that’s why people are calling on the courts.


Bill Loveless [00:19:01] Yeah. And some states, some states are acting when it comes to policy. Let’s talk again about California. The legislature there passed bills requiring large companies doing business in the state from oil and gas companies to big retail giants to disclose their emissions and the financial risks associated with their emissions. I just read that Governor Gavin Newsom says he’ll sign the bills into law. No surprise there. But that’s a big development in the in the state of California. You said on on X that, quote, They are among the most positive developments ever in climate law. Why is that so?


Michael Gerrard [00:19:42] Yeah. So let me let me say what I said that the in the first place. The Securities and Exchange Commission in March of 2022 announced proposed rules on climate disclosure. They have been massively controversial. The final ones are expected in October and 2023 and will immediately be challenged in court on all kinds of of theories. The draft called for disclosure of scope three. That’s the most controversial part. There are some rumors that the SEC may drop that. We don’t know. But the California law about to be law goes beyond the SEC in that it applies to private companies as well as publicly traded companies. So there are a number of very large private companies that haven’t been subject to any of these disclosures. And also, the SEC proposal says that emissions need to be disclosed and others need to be disclosed only if they are material. And a whole lot of ambiguity about just what does materiality mean. The California law does not have a materiality requirement. One reason I think this is so significant, even beyond the fact that it goes beyond the SEC and doesn’t have the same vulnerability, is that most international law just goes against states. It goes against governments. But the governments then have to take further steps to go against corporations that are responsible for the extraction and use of most of the fossil fuels. And so there are there are a few steps removed from the actual emissions. Here the California law is calling US traded companies. Now it’s just disclosure. It’s not requiring them to reduce the emissions, but it’s going to do a number of things that it’s going to help the companies themselves understand what are the sources of greenhouse gases that they’re responsible for. Often, you know, said if you can’t measure what, you can’t count. And so you’re going to have to count it and figure out where it’s coming from. It’s going to lead to benchmarking where it’s going to be possible for companies to be compared one against the other in the same sector. And so if it turns out that that steel company A emits a lot more greenhouse gas per ton of steel than Steel Company B, that leads to more pressure on steel company. And if there is someday a carbon tax or stringent regulation, the data developed. I think this reporting scheme is going to give you the company a leg up on who has to pay what taxes or has to undertake emissions reductions.


Bill Loveless [00:22:34] Yeah, I’m sure this this these laws in California will be will be challenged in court right at some point. And I’m not sure what would be the claims, the legal claims that could be made against them.


Michael Gerrard [00:22:48] So it’s going to be harder to challenge the state law than the federal law. Under the SEC, regulation will currently be challenged under the major questions doctrine, which is the doctrine that the Supreme Court has taken to using regulations it doesn’t like. And the basic idea is that an agency can’t take economically, politically significant action unless Congress has very explicitly told them they could take that exact action. So the Supreme Court used that to say that EPA had gone too far with the Clean Power Plan. They used a few months ago in striking down President Biden’s relaxation of the student loan repayment rules. So clearly it will be used against the SEC rule. We don’t know how it’ll turn out. But it’ll be used that way. That only applies at the federal level. And here the state legislature has very explicitly put this these requirements into effect and has told the California Air Resources Board to come up with the regulations. There are going to be some theories that, eh, the state securities laws can’t be used to affect out of state operations. I’m sure that that will be raised. And the overall issue of extraterritoriality became a weaker argument a few months ago. And another case out of California and the state of California passed a law saying that a B can’t sell pork in the state unless the pigs were raised in a sort of humane manner, which mostly controls the size of the pens. And so most of the pork consumed in California is is from pigs that are grown outside California. And so the National Pork Producers Association sued, saying that this was impermissible extraterritorial regulation. The Supreme Court said no. And a decision by Justice Gorsuch, the Supreme Court said as long as it’s not discriminatory, it’s okay. If you were to say that only pigs going out of state need to be in large pens, that would be a problem. But here the pigs were treated equally. There was no discrimination across state lines. And so that law was was okay. So there’ll be a challenge related to extraterritorial impact, but it’s now weaker than it would have been. But for that pig case.


Bill Loveless [00:25:32] Something to be learned from the pig case, I take it. And it goes without saying that, you know, regardless of what happens with the SEC proposal, you know, what happens in California often has implications that go well beyond the state’s borders. We see that with vehicle emissions and the regulation of them. So this is a law that I’m assuming it will be watched very closely for its for its effects across the country.


Michael Gerrard [00:26:01] That’s right. And at the same time, we’re seeing similar requirements emerge in Europe. And the European Commission has issued rules on corporate climate disclosures, including scope three disclosures. And the national governments in Europe are adopting those. And and so, you know, I have a colleague at the law school, Professor Otto Bradford, who wrote a book called The Brussels Effect about how regulations coming out of Europe have a global effect. We also have a California effect. California is the fifth largest economy in the world. Every big business just about wants to sell its products in California. And so the standards that it adopts have a national and even global impact. So, as you say, California’s been a leader in motor vehicle emissions controls and regulation of energy efficiency from appliances and other equipment and lots of other areas, toxic substances. And this is another example of that.


Bill Loveless [00:27:03] Yeah. You know, let’s get back to the report from the U.N. and the Saban Center identified a series of future trends in global climate litigation, including a prediction about the number of cases dealing with immigrants. Internally displaced people and asylum seekers will continue to grow. I think it’s. Probably apparent to many people. But what what is your interpretation of that from a legal standpoint?


Michael Gerrard [00:27:33] Well, the climate trends are going to lead to a horrible level of forced displacement. That that sea level rise and droughts and extreme flooding are going to drive more and more people from their homes. And many people will have to cross national borders. The there are very few places in the world that are amenable to taking in those kinds of folks. But the number that will be involved is is just astonishing. And the civil war in Syria displaced around 7 million people and led in part to the destabilization of some of the governments in Europe. The number of people displaced by climate change looks to be at least an order of magnitude larger than that. And there is no legal category of climate refugees in order to be a refugee under the Refugee Convention of 1952. You have to be fleeing persecution or reasonable fear of persecution because of political or religious or various other factors. Climate change doesn’t fit within that, but a lot of people are going to be showing up at the border and asking to be let in. We’ve had a little bit of litigation, notably in New Zealand about that, but I think we’ll see a lot more of that. I mean, right now there’s something of a crisis in New York City where tens of thousands of people who come in from the southern border have come to New York. And it’s not clear where they’re going to be housed in their. Adams of New York City is calling on other agencies to cut back their budgets because the cost so much to house these migrants. I’m sorry. I think this is just going to be a massively growing problem in the years ahead.


Bill Loveless [00:29:39] You know, another trend is a growing number of of pre and post-disaster cases that are premised on a defendant’s failure to properly plan for or manage the consequences of extreme weather events. This is what we learned from this report. Here in the U.S., we see it most recently in lawsuits arising from the wildfires that devastated Maui and the Hawaiian Islands. More of these cases. Globally seem all but certain. Right.


Michael Gerrard [00:30:09] And that’s right. As as injury happens. People look to see who they can sue. And and certainly in the issue with the California wildfires a year ago, there were a lot of lawsuits against the electric utilities and leading some of them to to bankruptcy. Right. And and the these cases need to be resolved in the bankruptcy context. And there there have been some allegations that the Maui Fire Marathon sparked by problems with their electric system. We’ll see how that plays out. But I’m sure there’s going to be litigation about that. Another kind of litigation that we haven’t yet seen much of, but that I anticipate as litigation against architects and engineers and builders who put up buildings for infrastructure that don’t withstand extreme weather events. We now have so many projections about extreme weather events and often geographically specific projections that it’s no longer possible to say it wasn’t foreseeable. If there if there are projections that that this particular area is vulnerable to flooding and the building is designed to withstand that kind of projection, that could lead to a liability loss. And we may see construction contracts and so forth have disclaimers of warranties or something like that. But I think we’ll see we’ll see more of that kind of of of just as we know, under all the projections are going to be more of these extreme events, It’ll cause more damages and more deaths. And that inevitably leads to more lawsuits.


Bill Loveless [00:31:52] Yeah. And there’s more science to rely upon these days, it seems. Yeah. Recently, I had Jeff Goodell on the show, the author of the new book The Heat Will Kill You First. And among other things, Jeff writes about the field of science called extreme event attribution. And in short, how, as you know, how rising levels of CO2 in the atmosphere are changing the frequency and intensity of extreme weather events. And in his book, he quoted a British scientist named Frederic Otto. Who says, quote to me, science is or can be a tool for justice. Extreme event attribution is the first science ever developed with the court in mind. What do you make of that observation? It seems that, you know, for the fossil fuel industry, the consequences could be staggering.


Michael Gerrard [00:32:44] Yes. I mean, of course, we we saw that play out with tobacco and the attribution of lung cancer and other diseases to tobacco became clearer and clearer despite years of denial by the tobacco industry. The science of climate attribution is becoming stronger all the time. But we don’t yet have any cases in the world where a fossil fuel company has been held financially liable for climate change. The Shell case wasn’t about a financial liability. It was about an obligation to reduce emissions. There’s there’s one pending case right now that might lead to the first such judgment. And oddly enough, it’s brought in the courts in Germany by a farmer in Peru. This farmer in Peru is saying that his farm is endangered by the melting of the glaciers of the Andes, that the melting is worsened by climate change. RW He was the largest electric utility in Germany, and there are calculations saying that RW is responsible for 0.5% of the load of greenhouse gases in the atmosphere, and therefore. RW We should pay 0.5% of this farmers damages. Now, clearly this is more for symbolism. The amount of money isn’t that much, but the lawsuit survived the initial motions to dismiss. The judges of Germany said that they wanted to go to Peru to see the melting glacier. This was right before the pandemic that held them up. But they went a few a few months ago and saw the glaciers. And that shows they’re really serious about this case. If they weren’t, they wouldn’t have taken the trip. So we may see that kind of decision come out of Tremblay shortly. And then, as I said, there are about 25 suits pending in the U.S. that have been held up on the state versus federal issue, But some of them may move forward. So we’ll see what happens with those.


Bill Loveless [00:34:46] You know, when when we last spoke on this show, Michael, last year, the U.S. Supreme Court had ruled that the Obama era program, known as the Clean Power Act, exceeded EPA’s authority. And you brought this up a few minutes ago. The high court said the EPA had gone well beyond its authority in pushing electric power companies to lower emissions by shifting to renewable energy without explicit direction from Congress. Earlier this year, EPA proposed another rule, as you know, regarding power plant emissions, one that EPA administrator Michael Regan told us in July will pass muster with the court. Do you think he’s right?


Michael Gerrard [00:35:27] No problem. But with the Supreme Court, it’s kind of hard to tell. You know, with the 6 to 3 very conservative majority of the Supreme Court, they’ve come up with any number of surprising decisions. But but I think it’s clear that the new EPA rule is on stronger grounds than the Clean Power Plan had had been. It is not explicitly calling for generation shifting, for calling for the move from away from fossil fuels toward cleaner energy and cities imposing stronger emissions standards. And those emission standards, certainly for coal fired power plants and possibly for natural gas plants, can only be met with carbon capture and sequestration. And we’re in the ironic situation where for years certainly the coal industry and some others were saying we’re going to have clean coal. We’re going to be able to use carbon capture sequestration. And now they’re saying, no, no, it doesn’t really work and you can’t force us to do it because that would make us shut down. But clearly, that’s going to be one of the arguments that has been raised. Also, just a couple of days before the show was taped, there were arguments before the U.S. Court of Appeals for the District of Columbia on motor vehicle standards, both fuel economy standards and emission standards. And they’re the only opponents of these regulations who are trying to use the major questions doctrine of some of these other legal theories. Interestingly, it wasn’t the automakers that were challenging it. The automakers are pretty much saying they can live with the rules. It’s more the red states and some of the the petroleum industry that doesn’t want to lose business. Of course, the largest threat. To the consumption of of oil is electric vehicles and. And so there there are fighting that they’re fighting these regulations.


Bill Loveless [00:37:36] Yeah. Yeah. There’s so much pending on those on those issues, including on emissions from vehicles. The, you know, largest source of this pollution. You know, the the courts the no substitute for Congress when it comes to coming up with some sound decisions on responding to climate change. And yet that’s the only resort, it seems, for so many people these days. Do you see the the time coming any time soon when when these various suits and decisions and courts do, in fact, prompt new policies?


Michael Gerrard [00:38:17] Well, they’re certainly prompting new policies from the administration. But but Congress, as we all know, is is is equally divided just about. And I don’t see congressional action unless the Democrats take back the House and keep the White House. And there is a stronger Democratic majority in the Senate that might be willing to post the filibuster rule. And they didn’t see any way we can get 60 votes in the Senate. But if we were to pass the filibuster rule so the 51 is enough, then a lot of things, many, many things could change, of course, as senators, mansion and cinema have blocked that. But who knows what the next election will bring? I mean, I say when I’m asked by young people, what what’s the most important thing I personally can do about climate change? And I’m asked that a lot, I say, and keep help with voter registration in a swing state because the thing that matters much more than anything else is who controls Congress in the White House?


Bill Loveless [00:39:31] You know, speaking of students at Columbia Law School and at law schools around the country, is the study of law keeping up with this rapidly changing environment for legal action in the United States and around the world?


Michael Gerrard [00:39:50] Well, many of us are trying to make it so. You know, I teach a class on climate change in the law school, and we allow a limited number of undergraduates and also graduates from graduate students from the climate school and other parts of the university. And there’s enormous demand for it. There’s the climate school itself just started a new course on climate change law. And with a couple of colleagues. I just came out with the third edition of the book Global Climate Change in U.S. Law, which a number of law schools are using as a textbook. So there are certainly major efforts to ramp up climate law, education and in law schools and in graduate schools and even at the undergraduate level.


Bill Loveless [00:40:36] Yeah, certainly a lot to cover and a lot to anticipate in courtrooms here and around the world. Michael Gerrard, thank you again for taking time to join us on Columbia Energy Exchange.


Michael Gerrard [00:40:47] My pleasure.


Bill Loveless [00:40:51] That’s it for this week’s episode of Columbia Energy Exchange. Thank you again, Michael. Jerod and thank you for listening. The show is brought to you by the Center on Global Energy Policy at Columbia University’s School of International and Public Affairs. The show is hosted by Jason Bordoff and me, Bill Loveless. The show is produced by Aaron Hartig and Steven Lacy from Post Script Media. Additional support from Daniel Prop, Natalie Volk, Lily Lee and Q Lee. Roy Campanella is the sound engineer. For more information about the podcast or the Center on Global Energy Policy, visit us online at Energy Policy. Dot Colombia, Dot Edu or follow us on social media at Columbia. You energy and you can rate the show on Apple or Spotify. You can also let us know what you think by leaving a review. If you really like this episode, share it with a friend or a colleague. It helps us reach more listeners like yourself. We’ll see you next week.

Around the world, activists are turning to the courts to hold major polluters accountable for climate change. This recently played out in the United States. Young plaintiffs in Montana successfully presented scientific evidence that connects the states’ greenhouse gas emissions to environmental harm.

Many legal experts say the case, Montana v. Held, is another major development for climate litigation. Other cases playing out across the globe show the courts could be a way to reduce CO2 emissions in the private sector. 

So, what are some of the other major legal cases aimed at fighting climate change? And how could they impact the push to reduce global emissions? 

This week, host Bill Loveless talks with Michael Gerrard about current trends in global climate change litigation, including the expanding range of legal theories that are being applied.

Michael is the founder and faculty director of Columbia’s Sabin Center for Climate Change Law, where he writes and teaches courses on environmental law, climate change law, and energy regulation. He was the chair of the faculty of Columbia University’s Earth Institute from 2015 to 2018. Before joining Columbia in 2009, Michael practiced environmental law in New York for three decades. 
The Sabin Center maintains a database that tracks climate change litigation around the world. As of December 31, 2022, the database included 2,180 cases. In addition, the Sabin Center and the UN Environment Program recently issued the 2023 “Global Climate Litigation Report,” which takes into account information from that database.


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