State courts can curb the climate crisis

The Pacific Northwest is burning up again with record-breaking May temps reaching 90 degrees in some cities. Climate change is making these heatwaves, and other extreme weather events, more frequent and more intense. 

These climate disasters are burdening cities, states and municipalities with staggering damages. In 2022 alone, the National Oceanic and Atmospheric Administration reported a $165 billion tab from 18 separate disasters — including droughts, wildfires, and floods — each with damages in excess of $1 billion. The total cost of 355 extreme weather events since 1980, each with damages of $1 billion or more, exceeds $2.5 trillion.

Now, state courts have an opportunity to provide critical intervention in the climate crisis and to address important questions about Big Oil’s responsibility for the costs of climate change. A slew of ongoing climate lawsuits can play a major role in shifting costs from cities and states to industry players that have, for decades, profited from selling high-emitting products while knowing full well the public costs of their activities.

Just last month, the Supreme Court gave a green light for lawsuits against Big Oil to proceed in state courts where cities, states and municipalities have sought to hold major emitters liable for the costs of climate change. The Supreme Court’s decision was prompted by a petition from fossil fuel companies in the case of Boulder County v Suncor. In that case, two Colorado counties are seeking damages from Suncor and Exxon for costs of climate change that include expenses due to more serious heat waves, wildfires, droughts and floods. The Boulder case is one of twenty similar lawsuits pending in fourteen states across the country. 

In California, the counties of San Mateo, Marin, and Santa Cruz, along with the cities of Richmond, Santa Cruz and Imperial Beach, are seeking damages from 30 major greenhouse gas emitters including Exxon, Chevron, and Shell. The state of Rhode Island has an ongoing lawsuit against 21 fossil fuel companies seeking damages for climate-change impacts including sea-level rise and intensified coastal storms.    

I’m a lawyer with a background in environmental science and I recently analyzed these lawsuits and the legal and scientific obstacles they face. In a new law review article, I show how innovations in climate science allow the courts to fill an important regulatory gap, much as they did in prior eras dealing with toxic chemicals and damages from pharmaceutical products. While heat waves, droughts, floods and hurricanes might have been dismissed historically as “acts of nature” or “acts of God” — eliding allegations of human responsibility for these disasters — developments in climate science now allow litigants to connect specific climate impacts to human contributions to greenhouse gases. 

Increasingly, major scientific outlets like Science and Nature publish climate attribution studies linking the contribution of human-induced greenhouse gas emissions to specific extreme weather events like heatwaves, floods and hurricanes. For example, rapid studies have found that human contributions to greenhouse gas emissions increased rainfall during Hurricane Ian by 10%. Thanks to methodological innovations by climate scientists, rapid analyses by the World Weather Attribution Network, and collaborations between lawyers and scientists led by groups like Columbia Law School’s Sabin Center and Oxford University’s Sustainable Law Program, legal claims that might not have been viable just five or 10 years ago now have a plausible path through the courts.

To be sure, a crisis of the unprecedented scale and complexity of climate change would be most effectively addressed through comprehensive global or even national regulation. But a coordinated regulatory response has been persistently thwarted by politics and special interests. State courts are positioned to fill a regulatory gap created by the absence of a domestic emissions policy, the erosion of the regulatory state after the Supreme Court’s recent decision in West Virginia v. EPA, and by the elusiveness of an economy-wide carbon tax. 

State courts have historically served as laboratories of democracy and venues for experimenting with responses to emerging risks. They played an integral role in defining new relationships and civic obligations in the wake of major societal shifts like the industrial revolution, the rise of mass production and the proliferation of toxic pollutants. The climate crisis presents an opportunity for courts to fill this role once again.

State courts should take advantage of this window of opportunity to reinterpret wrongs and responsibilities in an era of climate crisis. They can draw on advancements in climate science that make connections between greenhouse gas emissions and climate damages legible and litigable.

Aisha Saad is an Associate Professor of Law at the Georgetown University Law Center and director of executive education for Oxford University’s Sustainable Law Program. She is a PD Soros Fellow and Public Voices Fellow of The OpEd Project.