Study demonstrates courts' critical, underappreciated role in climate policy

September 7, 2017
Credit: CC0 Public Domain

Researchers at the George Washington University (GW) have identified that the number of federal and state climate lawsuits has been growing since 2006 in the most extensive study to date on the nature and impact of judicial resolutions of legal actions related to climate change. This first-of-a-kind analysis shows that air pollution and coal-fired power plants were the subject of the majority of the studied cases and 58 percent of all of the cases were won by litigants opposed to government regulation. The analysis also shows that pro-regulation plaintiffs won more than twice as frequently in cases involving renewable energy and energy efficiency.

"The courts are a central, yet underappreciated avenue for the development of climate-related policy in the United States," says lead author Sabrina McCormick, PhD, an Associate Professor of Environmental and Occupational Health at GW's Milken Institute School of Public Health (Milken Institute SPH). "In this regard, our country is responding to climate change similarly to how we dealt with tobacco and chemical exposures. In the coming months and years, judicial decisions that both support government action on climate change and serve to halt or slow such action will have a significant impact on our nation's , energy development, and biodiversity. These decisions will also play a key role in determining how our cities and society are able to adapt to climate change."

McCormick and her colleagues in the Milken Institute School of Public Health's Department of Epidemiology and Biostatistics, the George Washington University Law School, and the university's Trachtenberg School of Public Policy and Public Administration looked at 873 judicial decisions between 1990 and 2016. They found that the number of decisions mentioning climate science has been increasing, especially since 2006. One of the best-known cases is Massachusetts v. Environmental Protection Agency (EPA), which prompted the U.S. Supreme Court to cite climate science in 2007 when it enabled the agency to regulate carbon dioxide emissions as a pollutant. But it is only one of hundreds of legal cases that address activities responsible for greenhouse gas emissions that have affected governmental decision-making, the authors say.

The GW team's analysis revealed that science was raised more frequently in cases arguing for regulation than in cases advocating against regulation. The analysis also shows that the role of climate science in the legal decisions has grown in recent years. A notable example of a case where climate science played a pivotal role is the 2009 decision by a U.S. District Court judge to overturn the U.S. Department of the Interior's 2007 removal of the grizzly bear from the Endangered Species List. The 2009 was influenced by studies showing that climate change threatened the bears' food sources.

"Litigation related to climate change is likely to grow in the next few years in response to actions by the administration and the Congress to roll back regulations dealing with greenhouse gas emissions and protections against the effects of climate change," says Robert L. Glicksman, the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He and his coauthors anticipate that the importance of climate is likely to increase in future judicial decisions.

Cases to watch, McCormick, Glicksman and their colleagues say, include the legal actions by the nonprofit Our Children's Trust, which argue that U.S. states are responsible for protecting children against the impacts of climate change. The lawsuit underway in Oregon relied on to overcome important legal hurdles, and other similar suits are pending elsewhere across the country. In addition, courts are likely to respond to an increasing number of cases challenging federal agency failures to adequately consider the impacts of their decisions on climate change in the context of environmental impact assessments and implementation of the Endangered Species Act.

The GW team also points out that courts in other countries have used novel legal approaches to deal more effectively with change. In the Netherlands, for example, a district court has ordered the Dutch government to take steps to substantially reduce greenhouse gases based on decisions by the Dutch Supreme Court holding that government can be legally accountable for failures to prevent foreseeable harms to its citizens.

McCormick has been studying the impacts of on human health for over a decade. Her experience includes serving as the lead author on the Special Assessment of the Nobel Prize-winning Intergovernmental Panel on Climate Change.

"Science in litigation, the third branch of U.S. Climate Policy" will appear online September 7 and in the September 8 journal Science.

Explore further: Extreme heat linked to climate change may adversely affect pregnancy

More information: S. McCormick el al., "Science in litigation, the third branch of U.S. climate policy," Science (2017). science.sciencemag.org/cgi/doi … 1126/science.aao0412

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Chris_Reeve
1.7 / 5 (6) Sep 07, 2017
Re: "In this regard, our country is responding to climate change similarly to how we dealt with tobacco and chemical exposures."

They keep saying it, but people dying TODAY is not at all comparable to future "SCENARIOS" -- you know, the term which the IPCC uses. I have to imagine that a judge would recognize the limited meaning of this word.
tblakely1357
3 / 5 (6) Sep 07, 2017
If you can't convince the masses, try to get the judicial system to do it by fiat. Damn that pesky democracy thing.... peasants living their lives without the 'guidance' of their betters.
marcush
4 / 5 (8) Sep 07, 2017
The changed climate is having an an effect right now. Don't you read?
leetennant
3.8 / 5 (10) Sep 07, 2017
Re: "In this regard, our country is responding to climate change similarly to how we dealt with tobacco and chemical exposures."

They keep saying it, but people dying TODAY is not at all comparable to future "SCENARIOS" -- you know, the term which the IPCC uses. I have to imagine that a judge would recognize the limited meaning of this word.


What a ridiculous thing to say. You make it sound like smoking a cigarette makes you drop dead. Tobacco and climate are perfect analogies because both deal with risks now that have future modelled impacts. I don't know how you people can keep saying this shit with a straight face.
Chris_Reeve
1.5 / 5 (8) Sep 08, 2017
https://fabiusmax...e-89635/

"Let's discuss what scientists can do to restart the debate. Let's start with the big step: show that climate models have successfully predicted future global temperatures with reasonable accuracy ...

This spaghetti graph — probably the most-cited data from the IPCC's reports — illustrates one reason for lack of sufficient public support in America. It shows the forecasts of models run in previous IPCC reports vs. actual subsequent temperatures, with the forecasts run under various scenarios of emissions and their baselines updated ..."

(cont'd)
Chris_Reeve
2 / 5 (8) Sep 08, 2017
(cont'd)

"... We want to know how well the models work. That is, how well each forecast if run with a correct scenario ...

A massive body of research describes how to validate climate models (see below), most stating that they must use 'hindcasts' (predicting the past) because we do not know the temperature of future decades. Few sensible people trust hindcasts, with their ability to be (even inadvertently) tuned to work (that's why scientists use double-blind testing for drugs where possible) ...

But now we know the future — the future of models run in past IPCC reports — and can test their predictive ability ...

Climate scientists can run such tests today for global surface temperatures ...

So they should run the models as they were originally run for the IPCC in the First Assessment Report (FAR, 1990), in the Second (SAR, 1995), and the Third (TAR, 2001) ..."

(cont'd)
Chris_Reeve
1.6 / 5 (7) Sep 08, 2017
(cont'd)

"... This was proposed by Roger Pielke Jr (Prof Environmental Studies, U CO-Boulder) in "Climate predictions and observations", Nature Geoscience, April 2008 ...

we now have respectably long histories since publication of the early IPCC reports: 25, 20, and 15 years. These are not short periods, even for climate change. Models that cannot successfully predict over such periods require more trust than many people have when it comes to spending trillions of dollars — or even making drastic revisions to our economic system (as urged by Naomi Klein and Pope Francis) ...

Re-run the models. Post the results. More recent models presumably will do better, but firm knowledge about performance of the older models will give us useful information for the public policy debate. No matter what the results ..."
Chris_Reeve
1.5 / 5 (8) Sep 08, 2017
Climate scientists want the world to treat their models as legally binding, yet they refuse to even re-run their own models to actually test those models' predictive abilities. It's very hard to take the models seriously when the climate scientists themselves aren't serious about testing them.
Maggnus
4.1 / 5 (9) Sep 08, 2017
Climate scientists want the world to treat their models as legally binding, yet they refuse to even re-run their own models to actually test those models' predictive abilities. It's very hard to take the models seriously when the climate scientists themselves aren't serious about testing them.

Idiocy, the mark of an EU Cultist.

https://www.skept...dels.htm
Chris_Reeve
1.5 / 5 (8) Sep 08, 2017
There's nothing at all there which actually responds to the critique put forward.
Maggnus
3.5 / 5 (8) Sep 08, 2017
There's nothing at all there which actually responds to the critique put forward.


I'm sorry GG Chris, I didn't realize you cannot read either. I will type slow for you.

The studies of models across the board have shown that even the earliest models are remarkably accurate in predicting the climate. If anything, they display too much caution.

Here, read through this. You can ask me to explain the big words to you.

https://pdfs.sema...1d3e.pdf

Da Schneib
3.5 / 5 (6) Sep 08, 2017
So the lesson here is, it's much easier to litigate against carbon-spewing industries to protect and diversify carbon-neutral ones than it is to try to stop them spewing carbon. This is no surprise to anyone who has observed the environmental fights in the US up until now.

Carbon-neutral and carbon-consuming industries need to fight their own battles on the economic field; the US public will not sanction carbon-spewing industries. And that's fine; the carbon-neutral industries are killing the carbon-spewing ones, and the carbon-consuming ones haven't even gotten spun up yet.

If I have a hope for the survival of my race (the human one, I don't care what your skin color is), then this is it.
Da Schneib
4.8 / 5 (4) Sep 08, 2017
What I find most amusing about getting a 1 for this is that obviously the #climatecranks don't believe their carbon-spewing industries can compete on a level playing field. The carbon-spewers have to have extra government assistance to survive.

Now, why doesn't that surprise me? Bet I get a 1 for this post too, unless the #climatedeniers grow some pride from somewhere or other.
leetennant
4.4 / 5 (7) Sep 09, 2017
Climate scientists want the world to treat their models as legally binding, ....


And again, I don't know how people can say these things with a straight face. This is like saying I want you to treat my epidemiological study as legally binding because I want to prosecute people who contaminate the water supply.
Da Schneib
5 / 5 (3) Sep 09, 2017
Say, aren't they doing that up in Michigan? Last heard of issuing lists of witnesses for the prosecution in July. Looks like they might get after about 5 of them for the Legionnaire's outbreaks they tried to cover up. No news on the lead contamination class action lawsuit since June.
Maggnus
5 / 5 (4) Sep 09, 2017
So the lesson here is, it's much easier to litigate against carbon-spewing industries to protect and diversify carbon-neutral ones than it is to try to stop them spewing carbon.
This actually shouldn't be much of a surprise. While politicians can be bought, once the cold light of fact is shone on the subject through litigation, the courts will usually side with the party who is able to present the clearest factual evidence. It took the very large awards made against tobacco to finally cause government to begin to take legislative action against them, despite the dollars the industry spent to prevent such legislation.

The difference here is time. Science says we need to take action now, but legal battles often span the course of a decade or more. The science will unquestionably win, it just may be that it will take too long for it to be effective.
HannesAlfven
1 / 5 (5) Sep 09, 2017
You stated: "The studies of models across the board have shown that even the earliest models are remarkably accurate in predicting the climate."

The paper you pointed me to states: "early attempts at coupled modeling in the 1980s resulted in relatively crude representations of climate."

You appear to be over-selling the claims made in the paper you pointed me to.
leetennant
5 / 5 (4) Sep 09, 2017
You stated: "The studies of models across the board have shown that even the earliest models are remarkably accurate in predicting the climate."

The paper you pointed me to states: "early attempts at coupled modeling in the 1980s resulted in relatively crude representations of climate."

You appear to be over-selling the claims made in the paper you pointed me to.


You're confusing two issues. The first is whether early models made viable predictions and the second is whether early models still needed to be refined. Both are true. The early models understated warming considerably because they still needed considerable refinement based on our growing knowledge of the climate. But most real-world warming outcomes have been within the prediction range of those models. It's just that the real world outcomes are at the extreme end of those predictions.
Maggnus
5 / 5 (3) Sep 10, 2017
The paper you pointed me to states: "early attempts at coupled modeling in the 1980s resulted in relatively crude representations of climate."
You appear to be over-selling the claims made in the paper you pointed me to.


You're confusing two issues. The first is whether early models made viable predictions and the second is whether early models still needed to be refined. Both are true. The early models understated warming considerably because they still needed considerable refinement based on our growing knowledge of the climate. But most real-world warming outcomes have been within the prediction range of those models. It's just that the real world outcomes are at the extreme end of those predictions.


He is purposefully confusing the issue while ignoring the truth that the models have been robust in predicting the climate's behavior. He seeks to sow confusion because he has no factual evidence.
howhot3
5 / 5 (1) Sep 11, 2017
Climate change and global warming are caused by human activity, so it only makes sense that the court system would be a factor mitigating that human activity that causes global warming. What should be of concern are political efforts to replace Judges with "Conservatives" that are flat out climate denier goons that prefer to see the destruction of the planet to favor the wealth of a few. That should concern people.

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