“We’ll See You in Court”: The Effectiveness of Climate Lawsuits to Achieve Environmental Goals

The courts have historically been a powerful activist tool. Recently, monumental Supreme Court rulings striking down affirmative action and abortion are indicative of the courts’ potency when it comes to questions on individual rights. When it comes to legal questions surrounding public policy and its societal impacts, however, standing trial has had middling success. Republicans tried and failed to strike down the Affordable Care Act, but did successfully block Biden’s student loan plan from reaching the pockets of the American people. The examples given indicate a trend: as of late, it is usually Conservatives seeking to silence left-leaning policy, not the other way around.

Could the left return to this model of activism to achieve their own policy goals? The environmental movement seems to think so. On the state and national levels, climate groups have filed suits to argue that, in remaining complacent to non-environmental behavior through policy action and inaction, governments are violating the constitutional rights of their citizens. Starting first with Juliana v. United States and growing from there, environmentalists are taking a page from the current conservative playbook and using the law to make their voice heard. The real question is, however, are these lawsuits effective? This blog post explores the merits of climate lawsuits by drawing out the similarities and differences in legal strategies at the state, national, and international levels.

Juliana v. United States is named after the 18-year-old girl, Kelsey Juliana, who was the first of 21 children who came together to file the lawsuit on August 12, 2015¹. Filed in response to the Department of Energy’s decision to build natural gas infrastructure in Coos Bay, Oregon, Juliana contains a series of declarative statements indicative of the suit’s ambitions. “The Federal Government Has Known for Decades that Carbon Dioxide Pollution Was Causing Catastrophic Climate Change” reads the first title under the statement of facts in one of their recent amended complaints. “A Nation-Wide Transition Away from Fossil Fuels Was Needed to Protect Plaintiffs’ Constitutional Rights”².

The premise of the Juliana’s argument hinges upon two major assumptions. First, that the constitution includes environmental rights. The lawsuit relies on a common law theory about a governmental obligation to protect common resources³. The common law is a floating legal code reliant upon court precedent rather than codified law. Because it utilizes precedent to make decisions, common law cases are traditionally reliant upon the will of the judge as opposed to a fight on how to interpret a code. Juliana is different in that it uses both of these legal fronts. In arguing that the common law imposes an obligation on governments to responsibly manage its resources, they also insist the government’s failure to do so violates their rights under the Fifth and Ninth Amendment of the U.S. Constitution⁴.

The second main assumption is that the courts have the ability to rectify the problem. At first, this is a difficult one to grasp: if there is wrongdoing, shouldn’t the courts have the ability to recognize that and order a resolution? It takes a little more analysis to understand how this plays out. For the lawsuit to even be considered, the plaintiffs must outline how they have been specifically injured and how the action they recommend the government take would alleviate this. To do the latter in the context of climate change, the plaintiffs would be calling on the courts to decree a series of complex policy decisions, something courts are not known for. That is not to say they have not in the past: the courts have commanded thorough public policy changes in integrating schools, for instance. But the environment is a whole other beast in itself.

To best evaluate Juliana, compare it to other cases. Internationally, State of the Netherlands v. Urgenda Foundation provides the most straightforward example of climate lawsuit success. The Urgenda Foundation is a government-created advocacy organization in the Netherlands to address climate issues. After the Netherlands reduced their emissions targets, Urgenda sued on the grounds that the Netherlands was violating two provisions of the European Council on Human Rights (ECHR) governing articles⁵. Specifically, that ECHR Articles Two -- ”right to life” -- and 8 -- “right to respect for private and family life, home, and correspondence” -- were in direct contention with the government’s hesitancy to act⁶. Long story short, they won. Proving the association between Articles 2 and 8 was only part of the winning case. Urgenda also had to prove that the government was, in fact, responsible for climate change—or at least partially responsible—and that the government could act to fulfill that responsibility to mitigate climate change⁷.

A similar approach worked on the state level in the United States. In Held v. Montana, plaintiffs argued that Montana’s Environmental Policy Act (MEPA) failed to uphold a portion of the Montana State Constitution, that being “the right to a clean and healthful environment”, by not requiring environmental assessments to consider greenhouse gases and climate change impacts in state environmental reviews⁸. Like Urgenda, the plaintiffs establish a constitutional obligation, government failure, and clear resolution. For Held, that was the requirement of including climate impacts in environmental assessments.

Thinking about these three elements when re-evaluating Juliana, it seems Juliana may be too broad in its claims of constitutional failure and too vague in its arguments of resolving the government’s alleged failure to protect the environment. Rather than argue for a direct textual interpretation, they instead rely on a common law theory approach to then interpret the constitution. And, while they can establish that the government has not been pure in its climate policy, their case lacks a clear picture of how this has happened and how it can be resolved. The better option is likely at the state level, similar to what Held accomplishes. Since more state constitutions were written after the federal constitution, they are more likely to contain more progressive language like in ECHR’s and Montana’s governing documents. Finally, those challenges should point directly to certain policies and chip away at poor climate practices one-by-one.

Juliana v. United States is a good start, but the environmental movement should look Held v. Montana and State of the Netherlands v. Urgenda Foundation for a more effective judicial playbook.

¹ Juliana v. United States | League of Women Voters.
² Julia A. Olson et al., Juliana v. United States (2021).
³ Juliana v. United States, Harvard Law Review (2021).
⁴ Supra 3.
⁵ Maiko Meguro, State of the Netherlands v. Urgenda Foundation, 114 American Journal of International Law 729-735 (2020).
⁶ Supra 5.
⁷ Supra 6.
⁸ Held v. Montana: A Win for Young Climate Advocates and What It Means for Future Litigation - Harvard Law School.

Clark Etzel
NSGLC Undergraduate Researcher